As with firing, the rules are well known, yet employers still fall into the common violations that spawn claims of sexual harassment, says management consultant Joseph Godwin of F&H Solutions Group in Asheville, NC.
Here are five areas that warrant attention.
1. No, it’s not sour grapes
Don’t dismiss any complaint, particularly one from a fired or demoted employee, as sour grapes or a lame attempt at revenge.
Many an employer gets a complaint and sees it as an action by a disgruntled employee and doesn’t investigate properly. But think it through. Did the firm hired a disgruntled employee or did it make the employee that way?
There are indeed times “when the motive is getting even,” Godwin says. But in his own experience investigating claims, he finds that when somebody makes a complaint, invariably “there’s something to it.”
2. No lightweight investigating
Never do “a lightweight job of investigating.”
Not unknown is the scenario where the employer takes the victim’s complaint to the accused, the accused denies it, and the matter becomes a he-said/she-said situation that never gets settled.
The employer’s job “is to address it and resolve it,” Godwin says. Don’t expect to be able to follow “a criminal standard of proof” and determine guilt beyond all reasonable doubt. Use a lesser standard of credibility, but make the decision one way or the other based on the facts.
In most cases, the decision will be in terms of “it looks like we did (or didn’t) have an incident here.”
And if the finding is in the negative, get back with the victim and say “we talked to So-and-So. He did not behave properly, and he’s sorry and we’re sorry. But what happened really isn’t harassment.”
3. Yes, suspicion counts
Watch out for retaliation.
Even when a complaint is found to be meritless, the office can be found guilty of it. What’s more, retaliation doesn’t have to be international or even real; the mere appearance of it can be enough to cause problems.
In one case, four employees requested time off to take vacation trips together and were granted it. Then in walks a fifth employee asking for leave to joint them and the request was denied. And it just happened that the fifth employee had earlier filed a complaint of harassment.
The reason for the denial was valid – allowing the leave would have left the office short-handed. But the supervisor didn’t explain that, and that allowed for the perception that the denial was retaliatory.
Be careful with anyone who has filed an EEOC complaint, Godwin says. Explain any action that adversely affects that person, however slightly, so there can be no suspicion of retaliation.
And another caution: don’t mention the earlier complaint in the conversation. Doing so can give rise to suspicion of retaliation.
4. Office size doesn’t matter
Don’t think a small office is immune to sexual harassment claims. True, Title VII of the Civil Rights Act applies only to employees with 15 or more employees, but other employees “still have weapons.”
There are state and local laws. And some states allow claims against employers who have only six employees.
Other actions can also be brought.
If there is unwelcome physical contact, there can be assault charges. Godwin cites one case where a federal court upheld and employee’s suit for sexual harassment and battery after her supervisor grabbed her buttocks and told her he wanted to have sex with her in the back room.
There can also be tort claims, and unlike discrimination complaints, those carry money damages.
If there’s a fear of harassment or injury, there can be a claim of emotional distress.
Or, if the harasser restricts the movement of the employee in the course of making sexual advances, there can be a claim of false imprisonment.
And along with the potential legal issues is the bad publicity that can follow he says. Picture the employee appearing on local TV saying “I’m getting sexually harassed at Firm X, and they won’t do anything about it.”
5. Bare bones aren’t enough
Have a comprehensive complaint procedure in the firm’s harassment policy.
“Bare bones procedures don’t work.” If the EEOC comes to call, the firm needs to be able to say “this is our procedure, and this is what we did.”
It’s not enough for the complaint procedure to say simply “bring all complaints to management.” It needs to give the title of the person who handles complaints.
In one case where a policy only designated management as the contact, and employee reported a complaint to the benefits manager. The complaint did not get properly investigated, the employee filed a claim, and the employer responded that “the benefits manager wasn’t really a manager, so the employee didn’t really report it.”
That argument didn’t go over well. The court said that in the employee’s eyes, the benefits manager was a manager.
The complaint procedure also needs to name more than one contact person lest the first person be the harasser.
It also has to say whether complaints have to be in writing and if so, what they should include what happened, when, the name of the harasser, and the names of witnesses.
That doesn’t relieve the office from investigating verbal complaints, he says. They still count. But it’s a good provision to include, because having the facts in writing eliminates the situation where a witness’s account is different from the account the accuser gave, and the accuser responds with “I didn’t say that. I said something else.”
| Related reading: | ||
|
|
|