Poncho Rules: Spanking is not Discriminatory

January 25th, 2008 by

Back in April of 2006 we blogged the strange story of Alarm One, a security company with an odd way of motivating employees: to stimulate sales, they routinely punished low performers by throwing pies at them, feeding them baby food, making them wear diapers and even spanking them in front of their colleagues. Hey, it worked for the Three Stooges, didn’t it? It did not work for Janet Orlando, a 53 year old woman who felt humiliated by the public thrashing.
Orlando sued the company for $1.2 million. She won. She was awarded $10,000 for economic loss, $40,000 for future medical costs and $450,000 for emotional distress, pain and suffering. She was given an additional $1.2 million in punitive damages for sexual harassment.
So far, Orlando has not been able to collect a penny. Now, on appeal, the company’s lawyer, Poncho Baker, has prevailed. His argument is that the spankings were part of a “voluntary program” to build camaraderie and were not discriminatory because they were administered to both male and female workers. This is called the “equal opportunity harassment” defense. A three-judge panel of the state Court of Appeal has overturned the verdict, ruling that the jury was given improper instructions. The judges said the jury wasn’t instructed that one vital element of proving that sexual harassment occurred is showing the action was directed at a woman because of her gender. Orlando cannot prove that the humiliation was directed personally at her. She was one humiliated person among many and gender was not a factor.
The “equal opportunity harasser” defense immediately gives rise to a compelling “quality of worklife” issue. Why would anyone choose to work for a company that routinely humiliates its employees? Perhaps the Animal House atmosphere appeals to some people. But this approach to a career would wear thin pretty quickly. The alarm bells should have gone off at Alarm One – and Orlando should have walked right out the door.