This week, the Fifth Circuit reminded us why it is so crucial that companies have a complaint procedure that allows employees to make complaints while guaranteeing that they will not be retaliated against for good faith reports. Frequent blog contributor Tom Wilson wrote back in January that, if a company were to pick just one policy to put down on paper, it should be this one.
In a recent Fifth Circuit case, the Court held that an employee who suffered from and was made fun of by co-workers because of a stutter did not have a harassment claim under the Americans with Disabilities Act because he didn’t follow his employer’s written complaint policy. Even though the employee complained about noise in the office, and had said that his nerves would be calmer and his stutter would decrease if he were in a quieter area of the floor, he never directly reported being made fun of for having a stutter. Because the employer didn’t have any reason to know that the employee felt he was being harassed, his “unreasonabl[e] fail[ure] to take advantage of the corrective opportunities provided by” his employer — that is, their complaint and reporting procedure, which provided that employees experiencing harassment should contact HR — meant the employer wasn’t on the hook for any harassment that might have occurred.
This case presents a valuable reminder for companies that, while sometimes you might feel that every policy you write down is just another opportunity for a dispute, sometimes the policies you choose to put on paper can be used to protect the company from liability. And this is especially true when it comes to complaint procedures, which, if drafted and carried out properly, might just save your neck the next time your company faces a harassment claim.