Civil rights investigators fired over discriminatory emails

Jill Jensen-Welch Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 08/25/2011 at 03:58 PM by Jill Jensen-Welch

Three Iowa Civil Rights Commission  investigators were fired for using the state's email system to engage in what an administrative law judge reportedly characterized as a remarkably broad, persistent campaign of discrimination and otherwise offensive conduct.   Tiffanie Drayton, Michele Howard and Wendy Buenger lost their $41,800/year jobs on June 16, 2011, due to frequent exchanges of gossipy emails at work—including offensive pictures—that criticized the looks, social skills, and mannerisms of their co-workers, and the management styles of their bosses, Don Grove and Executive Director Beth Townsend.  The emails were uncovered during an internal investigation into an allegation that confidential information had been disclosed.  Reportedly, the emails ridiculed the obese, gay, transgendered, elderly, African-American, and white—all of which are, or potentially are, protected classes under the laws these investigators were charged with upholding.  The trio also used derogatory nicknames, such as “Psycho” and “Albino” to punctuate their spirited colloquies. Perhaps unwisely, the three applied for unemployment and appealed the initial denial of the benefits.  Appeal decisions for two of the three were recently issued, and the hearing for the third is scheduled for later this month.  Unemployment appeal decisions are public records available on line at http://www.iowaworkforce.org/ui/appeals/index.html. Union grievances are also pending.  The ICRC’s purpose is to “enforce state and federal statutes that prohibit discrimination in employment, public accommodations, housing, education and credit by investigating and litigating civil rights complaints.”  The unemployment ALJ expressed astonishment that ICRC investigators would engage in discriminatory conduct themselves.  Setting an unreasonably low standard for herself and her cohorts, which we presume she did not employ when she was investigating others, Drayton said her actions were not harassment because the people she was mocking did not know about it.  Drayton further attempted to explain away her actions as “office banter,” “just talk,” and “water cooler chat.”  Likewise, Howard downplayed her actions as “just girls being silly,” and said everyone was doing it.  That age-old excuse was ineffective with the unemployment ALJ who is reported to have held that “What is even more remarkable is Ms. Howard’s effort to minimize, or excuse away, the discrimination and offensive conduct she directed at various individuals and groups.”   In addition to inappropriate content, the emails were a work disruption and misuse of paid work time.  Drayton was accused of sending an average of 75 emails per day while completing one civil rights investigation between March 1 and June 3.  Howard was accused of sending 1,600 emails over the same three month period.  It was not lost on Townsend—who was appointed as the new Executive Director of the agency by Governor Branstad in January 2011—that the emails likely took up a majority of their working time.  For more details on the emails, see the August 23, 2011 article in the newspaper that “all Iowa reads.”  It is a-mazing.  Once the shock subsides, there are lessons to be learned here:

  1. Don't assume your workplace is free of illegal discrimination.  This situation is proof that even if you are dedicated to eradicating and preventing discrimination in the workplace, it still happens.

  2. No matter what the form, don't let horseplay get out of hand.  Nip it in the bud.

  3. Don't accept a wrongdoer's excuses when you have her dead to rights.  Employees will defend their own misconduct, even against a mountain of evidence.

  4. Don't ignore forks in the road during an internal investigation.  Be open to what you may uncover and where the facts may lead you - even if it goes down an unexpected path.

  5. Recognize that unemployment appeal decisions are fodder for the newsletter, especially when the facts of the separation are noteworthy or the employer is in a targeted industry.  (The Des Moines Register often reports termination stories gleaned from unemployment claims in the healthcare, childcare, and eldercare industries.)

Kudos to Townsend for her temerity.  Before being appointed to lead the ICRC in January 2011 by Governor Branstad, Townsend spent nine years representing plaintiffs in employment law cases in addition to her time as a military attorney and judge.  She has shown here that she will make the tough decisions to terminate, when needed, and she will vigorously defend those terminations—even in the face of certain publicity.  There’s a new sheriff in town.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

 

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