You won't go wrong.
Top o' the mornin'! This post has nothing to do with St. Patrick's Day, but I hope you're having a good one.
When I conduct harassment training for supervisors and managers, we spend a good bit of time on what they should do if one of their employees makes a harassment complaint. The answer could not be simpler. Here it is:
GO DIRECTLY TO HR.
It's not because we don't trust you. It's because -- as my colleague Zan Blue would say -- handling a harassment complaint is rocket science. Many of the laws about handling workplace harassment are complex and counterintuitive. But your friends in Human Resources usually know about the laws (and the interpretations of those laws) that apply, what makes for an effective investigation and what doesn't, and the employer actions that are effective in putting a stop to the harassment versus those that are not. If they don't know, they usually have the authority to consult with the company's employment counsel.
A true story
A very long time ago, when sexual harassment was a new-ish thing, an employee complained to her department manager that her supervisor was sexually harassing her. The department manager went to the supervisor and said, "Lulu [not her real name] says you've been sexually harassing her. Is that true?"
The supervisor replied, "I ain't crazy."
Oh, ok! Thanks! Case closed!
Needless to say, the employer had to pay a substantial sum to settle the suit that ensued.
What should the department manager have done differently?
GO DIRECTLY TO HR. That's what he should have done. Even back in the old days, most HR managers would have known better than to just accept the word of the accused harasser.
Group leader breaks the rule
What reminded me of that story was a recent decision from a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Kristie Alley worked for Penguin Random House at its supply warehouse in Crawfordsville, Indiana. At one point she alleged that she had been sexually harassed by a male group leader, "Scott." Ms. Alley reported the allegations to her own group leader, who did nothing.
Ms. Alley was later promoted to group leader. About two years after her alleged harassment incident with Scott, an employee ("Marlene") told Ms. Alley that Scott was harassing her.
Q: What should Ms. Alley have done?
A: GO DIRECTLY TO HR.
In fact, the Penguin harassment policy specifically said that supervisors or managers who were aware of allegations of sexual harassment had to GDTHR or face the possibility of discipline.
Did Ms. Alley do what the policy and extremely knowledgeable employment lawyers like me said she should?
No, she did not. Ms. Alley asked Marlene to provide a written summary of her allegations, and it took Marlene about four days to get that done. Ms. Alley also sent a Facebook message to a former employee who Ms. Alley suspected had been harassed by Scott. On Day Four, Ms. Alley made one call to the company's harassment ombudsperson, got no answer, and didn't try again. In short, Ms. Alley did just about everything except GDTHR.
On approximately Day Six, two of Marlene's co-workers went to HR on their own and reported that Marlene had been sexually harassed by Scott. HR "immediately launched an investigation," suspended Scott, and got statements from Marlene and one of her co-workers.
Then a Senior Vice President of HR and the HR director for the facility asked to meet with Ms. Alley. They told her that she'd been acting different lately and asked whether anything was wrong. (Was this a trap?) Ms. Alley admitted that she had known about the allegations for a few days and had tried to contact the ex-employee to get more information. She also forwarded the statements that she had obtained from Marlene and Marlene's co-worker.
Then Ms. Alley provided her own statement, saying she'd been sexually harassed by Scott in the past, and had reported it to her group leader, who had done nothing. (The group leader admitted to this.)
Penguin fired Scott, the alleged harasser. Then it demoted Ms. Alley from group leader to forklift operator because she did not GDTHR with Marlene's allegations of harassment.
Not long after her demotion, Ms. Alley quit. Then she sued Penguin for retaliation under Title VII and for breach of contract under Indiana state law. The latter claim was based on a statement in the company's Code of Conduct, saying that employees would not be retaliated against for reporting misconduct.
A federal district judge granted summary judgment to Penguin on both claims, and two out of three judges on a panel of the Seventh Circuit affirmed. (All three Seventh Circuit judges agreed that the contract claim was properly dismissed.)
So, supervisors and managers, this is why employment lawyers always tell you to GDTHR when you receive a complaint of harassment. Do not wait to see whether things get better. Do not wait to see whether things get worse. Do not wait while you ponder whether the reported conduct really rises to the level of harassment. Do not try to investigate on your own. This last point may be even more important if you might be a witness in the investigation (remember that Ms. Alley said that Scott had sexually harassed her, too). Ms. Alley's own investigation delayed the reporting of the harassment allegations to HR by at least four days. Worse, it isn't clear that Ms. Alley would have ever reported the allegations to HR if she hadn't been called in after the two employees spoke out.
So, Ms. Alley did wrong and had to face the consequences. But nothing is simple. There is one loose end in our story: Whatever happened to the group leader who failed to report Ms. Alley's allegations of sexual harassment? He didn't GDTHR, either.
The answer is Nothing. Nothing happened to the other group leader, and that is the one thing that bothers me about the panel decision. According to the majority, the fact that the other group leader's inaction had occurred two years earlier meant that he was not a true comparator to Ms. Alley. His non-compliance with the policy was "stale," while Ms. Alley's non-compliance was "fresh." This bothered the dissenting judge, Candace Jackson-Akiwumi, too. In her opinion, the disparity in treatment of Ms. Alley and the other group leader justified sending Ms. Alley's retaliation claim to a jury. I'm not sure the judge is wrong.
OK, JUST ONE FUN FACT ABOUT TODAY: Did you know that St. Patrick was not Irish? He wasn't!