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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Harassment Complaints: Appropriate Responses and
Discipline
August 22, 2007, Volume 9, No. 34
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Harassment Complaints: Appropriate
Responses and Discipline
A swift and suitable resolution of harassment complaints can limit
damages or, in the case of hostile environment claims, shield you from
liability. Find out how to decide what discipline, if any, is proper in
harassment cases. |
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THIS WEEK'S E-TIP: Harassment Complaints: Appropriate
Responses and Discipline
You probably have a harassment policy in place and know how
important
it is to train employees about what is appropriate and
inappropriate
conduct. You may even feel fairly comfortable conducting a
harassment
investigation.
But, are you confident you know what your obligations are to
take
disciplinary action if your policy has been violated? How you
respond
often will be the determining factor in either preventing or
provoking
discrimination claims. Fortunately, there are several simple
steps you
can follow to help determine what discipline is appropriate.
Duty to Prevent Harassment
Your duty both to prevent workplace harassment and to take swift
action
to remedy it when it occurs is well established. Title VII of
the Civil
Rights Act prohibits harassment or a work environment that is
abusive to
employees because of their race, gender, color, religion, or
national
origin. In addition, the Americans with Disabilities Act has
been
interpreted to prohibit harassment based on an individual's
disability.
Although the most common harassment claims involve allegations
of
sexual harassment, the same legal analysis applies when the
offensive
behavior is aimed at any legally protected class. Most states
also have
laws forbidding workplace harassment, as do many cities and
other local
governmental authorities.
When Your Harassment Policy Has Been Violated
Of course, discipline is generally one of the last steps in any
harassment
procedure (Click
for free policy download). It should follow only
after you have
conducted a thorough and prompt investigation, interviewed all
involved
parties, and carefully weighed the evidence. If you conclude
that your
harassment policy has been violated, disciplinary action is then
the next
step.
As a general rule, any disciplinary measures should take into
consideration the nature and seriousness of the harassment and
should
also reflect whether the incident is the first violation of the
policy or part
of a broader pattern of harassment. In addition, you should
follow your
organization's standard
disciplinary guidelines and make sure the
discipline properly matches past precedents.
Courts and the Equal Employment Opportunity Commission (EEOC)
generally agree that in order to escape liability under Title
VII employers
must take appropriate remedial action that is "reasonably
calculated" to
stop the harassment and prevent any future occurrences. They
also
emphasize that disciplinary measures should be appropriate to
the
seriousness of the offense.
No Violation of the Policy
If you investigate a complaint of harassment and determine that
your
policy was not violated and that no harassment occurred, you
should not
take any disciplinary action against the accused harasser or
retaliate
against the complaining employee. You should explain in
appropriate
detail to the complaining employee why the evidence did not
support the
claim.
You also need to be prepared for the complaining employee's
dissatisfaction with the decision. As a safety valve, most
employers
invite the employee to submit any further evidence not yet
produced. In
addition, you should remind the employee of any available
appeals
process using your normal
complaint resolution procedure. Your
empathy for the complaining employee's concerns will help
neutralize the
type of emotional reaction that often leads to a claim with the
EEOC, or
to a lawsuit. |
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Inconclusive Investigations
Unfortunately, there often are circumstances when the results of
your
investigation are inconclusive or your findings are ambiguous.
However,
even in these instances, you should not dismiss the complaint
lightly or
without explanation. Any apparent lack of concern may aggravate the
problems between the complaining employee and the alleged harasser
and signal to other employees that your harassment policy is
ineffective.
To preserve the integrity of your policy, you should explain to the
complaining employee why the evidence was inconclusive. You also
should express the organization's commitment to its policy and
assure
the complaining employee that the alleged harasser will be warned
about
the consequences of any
inappropriate conduct (Click
for free policy
download). In addition, you should explain the appeals
process to the
complaining employee and encourage its use when appropriate.
Finally, if there appears to be evidence of a continuing conflict
between
the two parties, you should attempt to resolve it or take some
nondisciplinary action to ensure the conflict does not continue.
This
action can include the
transfer of one of the parties or the reassignment
of job duties. Remember, however, you must be sure that any action
taken does not appear to be retaliatory to the complaining employee,
such as a demotion or a transfer without a prior agreement.
Follow Up on Effectiveness of Remedial Action
Whatever action you take, you must follow up to ensure that the
complaining employee is not retaliated against and that no new
incidents
occur. This step is crucial because, even if your initial remedial
action
was sufficient, you have an ongoing obligation to respond if the
harassment continues or intensifies.
This follow-up can be particularly important in situations where the
alleged harasser receives only a warning or written reprimand and
then
continues to work with the complaining employee. Courts often have
noted that, while a verbal warning and counseling may be very
effective
initial steps to remedy harassment, the employer has a further duty
to
make sure that the harassment does not continue or recur. It is not
enough for you to "cure" one symptom of harassment if you do not
address the entire disease.
In addition, any discipline you imposed should be documented and
communicated to both the complaining employee and the harasser. You
should assure the complaining employee that the harasser's conduct
will
be monitored and encourage reporting any subsequent harassing or
retaliatory conduct. Both parties also should be given the
opportunity to
express any dissatisfaction with the outcome and to appeal the
decision.
An
appeals process lends additional fairness and impartiality to
the
decision and may encourage the parties to accept the final decision
as
the product of a fair and complete process.
Reaffirm Commitment to Harassment Policy
If the harassment is determined to be widespread and involves more
than one employee, you may need to reinforce publicly the
organization's
commitment to its harassment policy. This reaffirmation should
involve a
memorandum reminding employees of the policy and the consequences
of violations.
You should not publicize, however, details and resolutions of
specific
incidents, even though you may be tempted to do so in order to show
the
organization's commitment to its policy. This type of publicity
increases
your exposure to subsequent claims of defamation, infliction of
emotional
distress, and other legal action from both the complaining employees
and the alleged harassers.
Take Action to Resolve Harassment
Recent cases addressing workplace harassment show clearly that an
employer's prompt and effective response to stop and prevent further
harassment is key to limiting liability. Appropriate discipline that
takes
into account the nature and severity of the misconduct is just one
step in
your overall harassment prevention and resolution strategy. You also
should have a strongly worded policy prohibiting harassment and
encouraging complaints, train your employees about the policy, and
implement a complaint procedure to investigate and resolve
complaints
in a timely fashion. By taking these actions, you can both help
prevent
liability for harassment and, just as importantly, create a
productive
working environment for your employees. |
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^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
can find model harassment policy and a discussion of the legal
issues of harassment in
Productive Work Environment, Chapter 201A.
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chapters,
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Information provided in HR Matters E-Tips is researched and reviewed
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