Practice Areas

Employer Lessons from Donald Sterling

May 2014

By: Walter J. Liskza, Esq.

There are very few, if any, individuals who are unaware of the well-publicized recent scandal involving Los Angeles Clippers owner, Donald Sterling. Certainly, Mr. Sterling's unfortunate comments have resulted in unprecedented penalties from the NBA and, in all probability, are the result of the very enflamed situation that grew from a bonfire to a forest fire within a few hours. Regardless of the circumstances of the Sterling scenario, there are lessons to be learned by all employers and management from this situation. Clearly, the actions and comments of employers, owners, and management, whether directed to employees or others, may have dire consequences for a business. Here are five practical tips for all employers to consider to avoid the "Donald Sterling motif."

  • Sound Discrimination/Harassment Policies.


Having a well-crafted, clear and comprehensive Discrimination/Harassment Policy is a central defense for all employers in any scenario. Specifically, these policies should have clear and definitive guidelines for reporting discrimination/harassment to immediate supervisors or alternative reporting authorities if the immediate supervisor is the alleged culprit. These policies should be clearly communicated to employees with distribution to all newly hired employees and clear documentation in policy manuals or postings at a facility. It might also be appropriate for employers to seriously consider the implementation of a Zero Tolerance Policy for any form of discrimination or harassment. This is a factor that is related to a company's culture and should not be implemented without consideration that a Zero Tolerance Policy requires a person found culpable for discriminatory or harassing treatment to be immediately terminated.

  • Training of Workforce.


Even with a very well-drafted employment policy, it is absolutely necessary that all employees - from senior executive to entry level employees be trained on the importance of the Discrimination/Harassment Policy and that everyone be clearly advised that this type of behavior will not be tolerated. It is also important that in these training sessions, there be a clear and consistent goal of treating all employees, whether by ownership, management, supervision or employee-to-employee, with dignity and respect.

  • Call to Action.


When a complaint is filed, it is extremely important to send a very clear and consistent message that any and all allegations of discrimination, harassment, or inappropriate conduct is taken seriously. These matters must be completely and thoroughly investigated and swift and decisive action taken if the complaint proves to be accurate. It is an absolute necessity that the complaining party be advised as to what actions are being taken. This sends a clear message that valid complaints are dealt with and employees' rights are protected.

  • Technology Issues.


Do not stick your head in the sand and assume that no one will record a conversation! In the current environment, with the advent of Smartphones and other expanding technologic gadgets, if you believe that "no one will ever record a private conversation," you are truly dreaming. In fact, most states permit the recording of a conversation if only one party has knowledge and consents to the recording. In the State of Illinois, the Supreme Court recently declared unconstitutional a very protective eavesdropping statute so; no one has to consent to a recording being made in Illinois. The "protection of law" is a big fallacy with regard to recording conversations, whether public or private. I am reminded of an old adage that I have used throughout my career - if you would not say it to your wife or your daughter - do not say it all!

  • Respectful Employee Relationships.


Employers must maintain an open door policy to allow employees to raise concerns and feel confident that those concerns will be addressed in an appropriate fashion. Listening to your employee concerns will undoubtedly improve employee morale and, just as importantly, allow you to identify negative issues before they impact the business. It will also remove the desire of an employee to "get the boss."

The Sterling scenario should force all employers to take a look at their employment policies and to take measures to improve on these policies where appropriate and necessary. Also, management and supervision should be well aware that any comments made, even in a joking fashion, can come back to haunt the speaker.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago, IL office at (312) 629-9300 or waliszka@wesselssherman.com.