The “dirty dozen”: top 12 employer harassment mistakes
- Constangy Brooks & Smith LLP
- August 8 2014
In other words, it isn’t Miller time for employers just yet.
In my continuing quest to make sure that none of our readers ever get sued — or, if that fails, never lose a lawsuit — here are my “Dirty Dozen” employer harassment mistakes. Are you guilty of any of these? If so, cease and desist!
THE “DIRTY DOZEN”: TOP 12 EMPLOYER HARASSMENT MISTAKES
- Having a harassment policy that covers sexual harassment only — nothing about race, national origin, disability, age, or religion, much less all of those “cutting edge” protected categories we’ve been talking about lately.
- Having a policy that requires the accuser to report the harassment through the chain of command. It’s ok to recommend doing it this way, but you need to have an alternative in case the harasser is in the chain of command.
- Policy or training that is too legalistic. One of my pet peeves is a harassment policy (or training) that simply recites the legal definition of unlawful harassment with no further explanation. No normal person knows what that legal definition means. It’s much better to provide SFW (suitable for work) examples so that employees know the behavior expectations and when they should complain.
- No training.
- Training that does not occur unless you’ve been sued. (If you get sued all the time, I guess this is all right.)
- Supervisors who, when receiving a harassment complaint, start investigating (or, heaven forbid, making determinations) on their own.
- Related to No. 6, failure to timely notify Human Resources or your lawyer about a complaint of harassment. The “lawyer” part is not a sales pitch. You don’t have to let outside counsel (like me) know right away, but do let your in-house counsel know, if you have in-house counsel.
- Not promptly separating the accuser and the accused, to (a) prevent further incidents, or (b) prevent further false accusations. (Consider suspending the accused with pay while you investigate. For everybody’s protection.)
- Overreaction. For example, firing the accused, a 25-year employee with a clean record, because he told a mildly off-color joke that offended somebody.
- Underreaction. For example, giving a writeup to the accused after you’ve determined that he sexually assaulted his assistant in the supply closet.
- Failure to follow all leads when conducting your investigation. Unless the accused admits to the harassment right off the bat, interview every witness identified by the accuser and the accused, as well as any witnesses identified by the witnesses.
- Failure to follow up with the accuser after the investigation is over. This is crazy, especially if the accuser and accused will continue working together, or if the accusations were serious but you couldn’t do much because your investigation was inconclusive. Follow-up will give the accuser the chance to let you know if any new harassment occurs. It will also show her (or him) that you care about her (or his) well-being. And, if everything is now fine, you can document that each time you check in — the documentation will help you in the event of a lawsuit later.