Time & Attendance
By DAVE LENCKUS
Dec. 1, 2011
Asher Adelman’s boss would regularly explode into profanity-laced tirades, occasionally punctuating them by hurling objects. Staffers dreaded his next outburst, but none felt empowered to act on how the CEO had locked his subordinates in a hostile workplace with his abusive behavior.
The executive created an atmosphere that was so toxic that Adelman quit. Then Adelman acted out against bad bosses everywhere in 2007 by creating a website—ebosswatch.com—committed to identifying those who make their workplaces emotional torture chambers.
For a fee, job candidates can even use the website to run background checks that include criminal history reports on prospective supervisors. But since mid-2010, the site’s latest tool has been nearly as popular among human resources and hiring managers as it has been with job seekers.
The free tool is a national sexual harassment registry that allows visitors to check whether an individual has been accused of making unwanted advances to a subordinate or co-worker in recent years. About 1,000 employers consult the registry monthly—40 percent of the registry’s users, Adelman says.
Ebosswatch.com is part of a broader trend of technology tools that allow employers to gain deeper insight about a candidate or help employees assess places where they want to work. Some think such transparency technologies as ebosswatch.com and Glassdoor.com are beneficial to both employers and employees. But not everyone agrees.
A number of critics warn that ebosswatch.com can create legal and practical complications for employers.
“I don’t think it has any value” as a screening device, says employer lawyer Robin Shea, a partner at Constangy Brooks & Smith in Winston-Salem, North Carolina. She says that many accusers either drop or lose their cases.
During the past decade the U.S. Equal Employment Opportunity Commission reports it dropped roughly 70 percent of the more than 140,000 harassment claims it handled. In a large majority of those cases, the EEOC found that the plaintiff had no reasonable cause to file a complaint. The remaining cases were closed because of administrative reasons, such as the agency could not locate the plaintiff, the plaintiff withdrew the charges or related litigation took precedent over the EEOC’s case. About 27 percent of the cases resulted in favorable outcomes for accusers.
“The bigger risk” is a rejected applicant alleging that an employer’s reliance on the registry is a ruse to discriminate against protected classes, Shea says.
A formal policy against hiring anyone who ever faced a sexual harassment charge could backfire, says Zev Eigen, an assistant law professor at Northwestern University School of Law in Chicago.
Under a Civil Rights Act of 1991 provision based on the U.S. Supreme Court’s 1971 ruling in Griggs v. Duke Power Co., a hiring policy that inadvertently hurts a protected class violates that group’s civil rights, Eigen says.
Labor Finders International Inc. does not consult the sexual harassment registry, says Wayne Salen, director of risk management for the Palm Beach Gardens, Florida-based industrial labor staffing company.
Still, the registry might be a helpful tool, and using it might not result in treating any group in an impermissible disparate manner, Salen says. Employers “have to be careful” about inadvertently harming protected groups, he says.
Rejecting a job candidate solely because they have a criminal background violates that individual’s rights, except for certain jobs, Salen says.
Eigen says the best way to limit liability for a rogue employee is to follow the Supreme Court’s directions for implementing and enforcing a strong anti-harassment policy.
And when using an online source, employers also have to determine whether they trust the registry’s credibility, he says.
Adelman says ebosswatch.com only repackages publicly available information. He primarily uses Google Alerts to aggregate data from various online sources, particularly news media and court websites. A proprietary database and software program his company developed then populates the registry.
Adelman also maintains that his registry has helped employers based on the number of accused harassers who have asked him to remove their names. He says he never will, because employers should know whether job candidates ever faced harassment charges.
Independent employment lawer Donna Ballman in Fort Lauderdale, Florida, likes the registry concept because she has so many male and female clients “who are victims of sexual harassment.”
She suggests improvements, however, including a more complete list of accused harassers. “If you see a name over and over again, it tells you something: Someone needs to do something about this person.”
David Ratner, a lawyer who represents an Illinois woman who was awarded $39.8 million in her sexual harassment case, doesn’t like the registry.
“I think harassers should lose their jobs and be punished,” says Ratner, managing partner of Morelli Ratner of New York. “But there’s a right way and a wrong way to go about it.”
Adelman says the registry should be used with other evaluation tools and that employers should allow accused harassers to explain their cases. But that suggestion is disingenuous, Ratner says. He doubts whether employers with multiple job candidates would consider one listed in the registry.
As a result, employers could reject talented job candidates who either were wrongly accused or made one mistake and learned from it, critics say.
Dave Lenckus is a freelance writer based in Tucson, Arizona. To comment, email email@example.com.
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