Be Prepared or .... Should We Sidestep the Train We See Coming!

By Robert D. Wurtz, CPCU

In the last decade or so, dramatic changes have taken place in people's attitudes as to what constitutes proper or acceptable behavior in direct and indirect transactions between individuals. Federal discrimination statutes, court actions, and a plethora of special interest and activist pressures have heightened many persons sensitivity to perceived slights or offensive behavior on the part of some individuals in their daily transactions with others. Unfortunately, due to varying levels of insulation or concern, we do not all get the message in the same way or at anywhere near the same time. Without making any evaluation of the rectitude of this trend, since it is a reality of life whether you agree with it or not, individuals in public positions must, of necessity, have the most sensitive and highly attuned awareness of what is considered a proper code of behavior than just about anyone else in our society.

Most of us are aware of some of the types of behavior or remarks that can lead to concern. For the most part, almost all of us over twenty-five years old have, at some time in our past, been guilty of committing some of the offensive behaviors or the making of remarks that could now be considered offensive. Although certain types of behavior have historically been considered boorish, only very recently have certain types of commentary or behavior (much of it would not previously been considered even boorish, but just friendly or normal human transactional behavior) become legally actionable and therefore a potential claim against the county or its personnel.

The most obvious types of potentially objectionable behavior may include such things as intentional bodily contact, including an arm or hand on the shoulder (even a handshake which may be perceived as sexually intended), remarks which may be perceived as having sexual, racial, age, disability or other illegal discriminatory content, smiles or gestures which may be perceived as lewd or insensitive, or displaying of materials which may be perceived as offensive to others.

Although an instance of any one of these behaviors would not normally be considered actionable, a consistent environment or regular pattern of such behavior could be. And the operative action, as you may have noticed, is the perception of the passive party. Their level of sensitivity, not any norm of behavior, is usually the basis for what is actionable or not. (Keep in mind that actionable does not necessarily mean winnable by the plaintiff, but the cost is about same to the defendant in a suit.)

Adding further complexity to the problem for some individuals, the line of what is or is not perceived as objectionable varies with each individual. The line often changes over time with each individual. Also, the line is often different for the same actions by different people with the same individual. The passive party is allowed to discriminate!

If you have been involved with county government for any length of time, you have probably run into some people who have not been enlightened to the realities of our changed society regarding what is and is not proper interpersonal behavior in the workplace, or anywhere else, for that matter (with the possible mitigated exception, for the time being, of the home.) This is an inauspicious circumstance as it could, and probably sooner or later will, lead to a claim. This is the train! Some people see it coming. Some, because of habit or dulled awareness, do not. As any good citizen should, those who see it coming should help those who don't.

Since we are all good citizens, the proper question is, how? Many of those on the tracks of the train live, outside of their county government life, in a much less delicate environment to a substantial degree. Things they do and say in their home town or around the farm often endear them with their neighbors. Making a "cute" remark to the young waitress at the coffee shop who grew up on the farm next to you, dated your son, and whose father is your partner when you mutually help each other harvest in the fall can easily elicit a very different response were you to use it on the secretary in the county clerk's office (even if you knew her as well)!

Calling someone on potentially objectionable behavior, especially an elected official, even in the most tactful and respectful manner, may not get the result you desire. Also, if you are relying on someone else's word, there may be nothing to it. It may only be the perception of a third party and not over the line for the passive receiver. It is probably not terribly advisable to go asking potentially offended parties if they, in fact, felt offended. Self fulfilling prophecies and all that!

Unless the potentially offensive activities are fairly obvious, it is probably best to mention the matter casually to the active party with a line something like, "You know, I can't tell for sure but, I think Pam was somewhat offended by your comments on her appearance this morning. She seemed a bit taken aback." At this point, little friendly education on political correctness may be in order.

This may or may not be the best approach but the objective is to tactfully heighten the others awareness that he or she may have inadvertently offended someone and the offense may be literally be made into a "Federal case". Then see how they react to it. If you get a, "I talk to all the girls like that. They enjoy being recognized as attractive!", or a, "Mind your own business!", you may want to get some help on some "sensitivity training". The Wisconsin County Mutual Insurance Corporation, or possibly other sources, have help for these situations. The Mutual has some fine videos on sexual harassment, what constitutes it and how to handle it, and an experienced staff available to discuss the problem with your people.

If someone complains to you or word gets to you that someone is really upset over a situation, please do not hesitate to call us. Often, a major claim can be averted, the train may be sidestepped if you will, by positive action by a third party. If the offended party sees that you are taking action to reduce or preclude the potential for further occurrences, they are likely not to convert the complaint to a claim. Most people are only after relief from what they consider to be offensive behavior, not the humiliation or social impalement of another person. The more subtle the handling, as long as it is effective, the better for all. Few want publicity or general knowledge of the offense, especially if unintended, or of their involvement.

If this is not the case, and a claim is forthcoming, the pre-work, mitigation activity, and quick involvement by a specialized legal counsel through a third party such as the Mutual, can often be the most important element in eliminating or winning a claim against the county and, at the very least, demonstrates the goodwill of the county toward it's personnel and their feelings.

The Mutual will handle this loss control activity, including the involvement of very qualified and specialized legal counsel, as if it were a claim, even though none is filed. If you are uncertain as to what course of action to follow, if your situation warrants any action or what level of action, please do not hesitate to call and discuss it. We will be happy to assist you in the decision as a normal service of the Mutual and at no cost to you. If special training or videos are deemed to be the best answer or part of the answer, these are provided at no cost to you as part of your service commitment by Wisconsin County Mutual.

If we decide that a claim can be sidestepped or mitigated by involvement of counsel, we have some of the best available. It is important to get outside counsel involved early so that you can have expert legal advice under the protection of attorney-client privilege for sensitive information or legal strategy. The courts are often inclined to believe the worst. It is much to your benefit, and that of other Wisconsin Counties, that you show your "best". Also, the counsel we employ, are experienced in avoiding claims and mitigating serious situations for Wisconsin Counties. If you get there before the train does, you will be able to sidestep it.