Despite the seemingly endless variety of employment–related claims, one type in particular surfaces all too frequently: that is, workplace harassment. Harassment claims come in many shapes and sizes, but must be based on conduct which violates the rights of persons belonging to one or more classes protected by workplace discrimination laws: race, age, religion, sex, national origin, disability, etc. The claims may allege bad behavior on the part of managers or supervisors, non-supervisors and even non-employees. Very often, the facts underlying these claims, especially those based on sex, are alleged to have taken place in private. In those cases, the principal evidence is of the “he said/she said” variety. Harassment cases are usually difficult to defend, and their outcome is very unpredictable.
Fortunately, there are steps that you can take to increase the chance of an early dismissal or settlement in the event that your business is confronted with such a claim. You may want to review the following tips to see if you are already taking these steps, or if you need to add one or more of them to the practices you already follow. Although you can never be 100% protected against legal liability, if you follow the advice below, your business stands a good chance of avoiding the high cost and uncertainty of defending a harassment case through trial.
6 Tips for Avoiding Litigation
- Implement an Anti-Harassment Policy for your Company.
If you have not already done so, you should implement an anti-harassment policy which: (a) explains what harassment is, (b) makes clear that such behavior is not tolerated, (c) explains how to make a report of harassment, (d) provides that all reports will be investigated and kept confidential to the extent consistent with a thorough investigation, (e) advises employees that they will not be retaliated against for making a good faith complaint, and (f) makes clear that any employee found to have violated the policy will be disciplined appropriately.
It does not matter if the policy is part of an employee handbook or not, as long as employees have access to it.
- Distribute the Policy and Train Employees.
If a claim of harassment is made, whether by an administrative agency or by a lawyer representing an employee or ex-employee, the anti-harassment policy will be the first thing you will be asked to produce. You will also be asked to produce records proving that the policy was distributed and that employees were trained on it. It is advisable, then, that (a) employees acknowledge, in writing, their receipt of the policy (or of the handbook containing it), (b) that employees sign a document showing that they attended training sessions on the policy, and (c) that you retain these documents in your files.
- Investigate All Allegations of Harassment.
Even though employee Jane Smith, who just reported harassment, is a chronic complainer about everything, do not ignore her or any other employee’s report of harassment. You should investigate all reports of harassment. In this regard, never comply with an employee’s request that you not take action on her complaint, because, for example, she “just wanted you to know” or “doesn’t want to get Mr. X in trouble.” When investigating, interview all relevant witnesses and warn them that they must not engage in retaliation. Take careful notes of the interviews.
- Take Appropriate Remedial Action.
If you determine that there is or may be merit to the report, you must take reasonable steps to make sure the harassment stops. Very often, it is difficult to reach any definitive conclusion as to whether the alleged harassment actually happened or not. In such cases, it is advisable to warn the alleged harasser that any further reports will result in discipline, up to and including termination. Remember that the goal of remedial action is not to punish, but rather to make sure that the harassment does not recur. Thus, termination of the offender is not always required. In egregious cases, however, termination of the offender is almost always the best course of action.
- Follow up.
After you have investigated and taken any to remedial action you deem advisable, advise the complainant, in a very general manner, of the outcome of the investigation. Assure him or her that there will be no retaliation for good faith reports. Then follow up with the complainant (and the person who reported, if they are not the same person) on a periodic basis for a few weeks and/or months to make sure they have not experienced a recurrence of the harassment or any retaliation. Keep notes of each follow-up encounter.
- Watch for Any Hint of Retaliation.
Because complainants are sometimes reluctant to report behavior they feel is retaliatory, you should keep your eyes and ears open for anything that might suggest that the complainant is being treated less favorably since her report. Remember that a claim of retaliation is as serious, if not more so, than the original claim of harassment. Particular care should be taken if a complainant is to be disciplined for unrelated behavior within a few weeks or months of having made the complaint. This might be interpreted as retaliation for the reported harassment.
If the above tips are followed, the chance that your company will have to endure a jury trial, protracted litigation or serious liability based on a harassment claim will be greatly reduced.