By Eric B. Meyer
You’ve got an anti-harassment policy. All managers and employees have copies and you just completed training on the policy for your entire workforce.
But is your policy bulletproof? I mean really bulletproof?
And if an employee claims that a harasser lurks in your workplace, if sued, will a court agree that the steps you have taken were reasonably designed to end the harassment?
Just how confident are you?
When a company may not have used reasonable care
Here are some not so obvious pitfalls from a recent federal-appellate-court decision and six ways (5 from the court; 1 from me) to help you stay legal and out of the courtroom.
In Shields v. Federal Express Customer Information Services, Inc., a manager got caught sending a series of inappropriate text messages to one of his employees. The manager was interviewed, but not the victim. Although, the company believed that the manager was likely having a sexual relationship with the victim, the manager was allowed to keep his job. He got off with a last-chance warning.
Why a last-chance warning? This was not the harasser’s first brush with HR. His personnel file included a prior sexual-harassment claim, one in which the manager allegedly threatened to fire the victim if she complained. As a result of that first complaint, the manager received a warning letter.
In the months following the second complaint, more incidents of sexual harassment involving the manager came to light. Several women found the courage to come forward and, finally, the manager was fired. The women then sued.
6 tips you should be following
On appeal to the Sixth U.S. Circuit Court of Appeals in Cincinnati, the court determined that the company may not have used reasonable care to prevent and promptly correct the manager’s allegedly sexually-harassing conduct. It offered several reasons which I have recast into the six tips listed below:
Tip #1: Make sure that your anti-harassment policy explicitly states that employees do not have to complain in writing. The Sixth Circuit found that policy language which merely instructs employees to immediately report harassment, could deter a victim from complaining about unlawful harassment. What the what?! According to the court, some employees might not understand from generic policy language that the company will investigate oral or informal complaints.
First off, in my book, there is no such thing as an informal complaint. A complaint about unlawful harassment, written or oral, is a serious complaint and the company should treat it as such.
And although I don’t agree with the court’s conclusion about the chilling effect of omitting language in a anti-harassment policy about oral or informal complaints, I makes sense to do whatever you can in a policy to encourage employees to complain about harassment they perceive in the workplace. Just train your managers to have complaining employees reduce their claims to writing.
Tip #2: Make sure that your anti-harassment policy provides a mechanism for employees to bypass a harassing manager when making a complaint of harassment. Simply encouraging employees to report claims of harassment to their supervisor is not enough. The fact pattern above is a prime example of how complaining to the harassing supervisor would do little good. Instead, be clear in your policy that victims should report claims of harassment involving their direct supervisor to another supervisor and Human Resources.
Tip #3: Always interview the complaining employee. Period. No exceptions. How can you know the full extent of what may or may not have happened without talking to the victim? What if there are other victims about which only the complaining employee has unique knowledge? Plus, talking to the victim indicates to that employee that you take your responsibilities as a caring employer seriously.
Tip #4: Thoroughly investigate all claims.
After you finish interviewing the victim, make sure to speak with the alleged harasser(s) as well as all potential witnesses. Otherwise, be prepared to look the jurors in the eye and explain why a slipshod investigation was appropriate.
Tip #5: After you conclude an investigation, continue to monitor the situation. The Sixth Circuit Court of Appeals determined that even if you determine that an employee complaint against a alleged harasser lacks merit, you have an ongoing obligation to keep tabs on the alleged harasser to make sure that he/she doesn’t act out in the future.
Seems a bit onerous, yes? Especially since the court is not supposed to sit as a super-personnel department second-guessing the employer’s decision-making. Further, the Sixth Circuit didn’t offer much guidance here about how the employer should accomplish this task. My suggestion is to follow up with the victim from time-to-time. If the alleged harassment has stopped, you did your job of preventing unlawful harassment in the workplace. However, if you learn that your initial conclusion was wrong and the alleged harasser, indeed, was an actual harasser.
Tip #6: Adopt a zero tolerance policy. The only way to make sure that it never happens again is to fire the harasser. This tip does not come from the Sixth Circuit. Rather, it’s from yours truly. Harsh? Sure. But I can guarantee you that the harasser won’t sexually harass the victim again.
Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at email@example.com.