“A good HR office is the linchpin for an employer’s effective system for learning about harassment and then responding quickly and effectively,” said Chai Feldblum, commissioner of the Equal Employment Opportunity Commission (“EEOC”), the agency that enforces federal workplace discrimination laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”).
This statement could not be more true, and we are seeing this span industries today more than ever before. Human Resources Departments (or “HR”) liaise between employees and management. HR often has to contend with conflicting and competing interests and may be ignored by a company’s top executives.
Let’s break it down.
Title VII, and most states’ laws, prohibits harassment in the workplace based on race, gender, religion, national origin, age, or disability. If a company knows harassment is occurring on any of these bases (as well as others under various state laws), it must act promptly to remedy the issue, or it can be held liable by any state or federal agency that investigates the harassment.
This starts with a solid anti-harassment policy, which is written in any kind of employee handbook or manual. If another employee (no matter who – manager, CEO, etc.) breaches that policy, an employee should register a complaint with HR.
Good HR departments take complaints of harassment very seriously—most call counsel to confirm (hello! That’s us!) that they are following applicable law. HR should investigate the matter thoroughly and promptly, including interviewing the alleged perpetrator, victim, and any potential witnesses. HR will recommend any corrections and work to ensure no retaliation against the complainant.
Of course, as I’ve repeated, HR will document the process extensively—sufficient documentation is everything here, people. Why? Because you, as the employer, want a written record of the steps your company took to investigate allegations of unlawful harassment in case despite your best efforts and intentions, an employee files a claim. This is critical.
As I tell my kids, while you can’t control what someone else does, you can control your own actions and reactions. So if the employee files suit anyway? You have a well-documented defense and increase your chances of a finding of no liability.
So what’s the problem?
Why are we seeing more headlines than ever about employer failures to prevent or correct unlawful harassment?
Well, let’s consider this conundrum in a practical sense—companies face potential lawsuits left, right, and center, depending on whom they act adversely toward!
Commissioner Feldblum recently noted that two common problems in how companies handle complaints are that top executives aren’t serious about enforcing harassment policies and are reluctant to punish star employees. This is exactly what Susan Fowler alleged about Uber, which if you need a refresher, including another reading of my ode, you can review here.
But are employees and top executives really at such loggerheads?
They shouldn’t be. Failing to establish this framework and tasking certified HR professionals to follow and enforce EEO laws needlessly exposes your company (and profits) to a potential expensive defense of an EEOC investigation as well as litigation. Doesn’t seem worth it, does it?
Rich Cohen and I have talked about these issues time and again, explaining that solid anti-harassment and anti-discrimination policies and the dismantling of “bro culture” and “mansplaining” must come from the “top down” or “trickle down.”
Employers: HR is there for you!
It’s their job to keep you out of trouble with the EEOC, and if that means disciplining your top salesperson, support them—it’s your legal obligation. Once an employer knows—i.e., once HR, a supervisor, or any manager or officer—about discriminatory or harassing conduct, the employer must investigate and take corrective measures.
What are they?
1) Have a clear, no-tolerance sexual harassment policy set forth in your employee manuals and handbooks; ensure it is disseminated throughout your company and understood. Apply the “trickle down” theory where there is a zero-tolerance policy for discrimination from the upper echelons of the company to the mail room. People follow the leader so when executives and managers create a workplace free of discrimination, others tend to “follow the leader,” a phenomenon Rich discussed at length here.
2) Have a specific procedure for investigating any claims of sexual harassment and follow it, documenting the process along the way;
3) Train your employees, HR personnel, and executives about EEO policies and laws.
4) Encourage reporting of sexual harassment and convey that your company would not retaliate (i.e., take an adverse action) in any way against any person who reported sexual harassment; and
5) Document extensively any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.
Employees: HR cannot help you if it does not know there is a problem.