We’ve all heard about and been astonished (or entertained) by the recent Coldplay concert kiss cam scandal involving the CEO and Chief People Officer of Astronomer, a data infrastructure and workflow company valued at over $1 billion. The potential legal and public relations implications of this scandal for the company are obviously plentiful. But what about the implications on any current or future employment litigation?
Why Company Policies Matter in Employment Defense
An employer’s defense to claims of discrimination or harassment frequently involve relying on company policies – the employee wasn’t fired because of her gender, race, age or disability; the decision was made because she violated a company policy. What happens when senior executives or other leaders within the organization have also engaged in conduct that is not consistent with the company’s policies? Even worse, what if the top HR executive whose team is charged with fairly and consistently applying company policies, hasn’t been complying with those same policies? All of this begs the plaintiffs’ bar to intervene, using the conduct and behavior as evidence to support a discrimination or harassment claim.
Legal Standards Under Title VII
Under Title VII and most state laws prohibiting discrimination in connection with employment decisions, a plaintiff generally must show that:
- He/she is a member of a protected class;
- Was qualified for the job;
- Experienced an adverse employment action; and
- The employer treated similarly situated employees outside of the protected class more favorably.
The burden then shifts to the employer to show that there was a legitimate, non-discriminatory reason for the action taken against the employee. The plaintiff then must demonstrate that the employer’s stated reason is a pretext for discrimination.
How the Scandal Could Undermine Policy Defenses
In the case of the Coldplay kiss cam scandal, the relationship between the CEO and the Chief People Officer is likely a violation of the company’s code of conduct and other policies.
If the company seeks to rely on those policies to defend claims of employment discrimination or harassment, the plaintiff’s lawyers will undoubtedly point to this incident and seek to find other instances in which the policies were not consistently enforced, thus creating evidence that the employer’s legitimate non-discriminatory reason is really a pretext for discrimination. Plaintiffs will argue that the company only enforces these policies against certain types of people or when it’s convenient for the company to accomplish a malicious goal.
Workplace Harassment Claims and Leadership Conduct
To establish a workplace harassment claim, a plaintiff must generally demonstrate the following:
- He/she is a member of a protected class;
- Was subjected to unwelcome harassment;
- The harassment was based on a protected characteristic like sex or race; and
- The harassment was severe or pervasive enough to create a hostile work environment.
Employers frequently rely on their corporate values and culture to defend hostile work environment claims. They won’t be able to do this when there has been misconduct by the company’s top leaders.
Indeed, in a LinkedIn post shortly after the incident, Astronomer made the following statement:
“Astronomer is committed to the values and culture that have guided us since our founding. Our leaders are expected to set the standard in both conduct and accountability, and recently, that standard was not met.”
This sets the stage to be able to continue to rely on company values and culture in the employment litigation context. But will it be sufficient? Plaintiffs will likely use the scandal as evidence that the corporate culture is not as described. Instead, they will argue that the inappropriate relationship between the CEO and the Chief People Officer is evidence that there is a corporate culture that fosters inappropriate behavior, which is evidence of a hostile work environment.
Steps Companies Should Take Now
“Do as I say but not as I do” is obviously a terrible way to lead an organization for a number of reasons. This type of leadership style will also make it difficult to defend employment discrimination and harassment claims. To avoid these arguments from dismantling your potential defense of discrimination and harassment claims you must:
- Review your Code of Conduct and other HR policies to ensure that they are setting reasonable and clear expectations and can be consistently enforced.
- Pay close attention to your conflict of interest and non-discrimination and harassment policies. Do these policies adequately address things like relationships with co-workers? Are there things that are prohibited by the policy but that regularly occur in the workplace?
- Ask your leadership teams to regularly revisit corporate values or corporate culture statements. Do they truly reflect not just what the company aims to be but what is actually happening on a day-to-day basis?
