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First, the bad news for growing companies: the larger, more diverse and stratified the workplace, the more likely it is that conflicts will erupt between employees that may go almost completely unnoticed by headquarters or top management until an administrative discrimination or harassment charge is received from the Equal Employment Opportunity Commission or Department of Fair Employment and Housing. By that time, usually, things have gotten out of hand and a lawsuit is almost a certainty. Or maybe no complaint has been formally registered, but the signs of a troubled workplace are palpable to an attentive manager: falloff in worker productivity, poor morale, employees calling in sick on consecutive or numerous days, routine tasks left undone or incomplete, job abandonment, unusually passive-aggressive conduct by formerly high-performing superstars. Now for the really bad news: attorneys representing employees who were harassed in the workplace will scour personnel files, personnel handbooks, investigation files and the recollections of witnesses (including, especially, the company’s harassment PMKs � person most knowledgeable), ecstatically taking note of all the mistakes made by the employer before, during and after harassment or discrimination first erupted in the workplace. An attorney who finds enough mistakes in investigation, poor or no training and a disinterested or careless attitude on the part of key decision makers in the corporation is on the way towards making a case for punitive damages. Ouch. Following is a list of 10 mistakes that hasten the pulse of an employment attorney. As a litigator with more than a decade of experience representing employees against large and small companies alike, I can tell you that no matter how large or sophisticated the employer, these mistakes are surprisingly common. � Don’t post anti-harassment and discrimination policies. A prudent employer posts state and federal rules regarding harassment and discrimination in the places most likely to be seen by employees, namely break rooms, kitchens, employee restrooms and below or above the time clock. But don’t stop there. The company anti-harassment policy should also be distributed on a regular basis along with paychecks. If you have a company Web site, post the policy prominently. Describe clearly the procedure that employees should follow if they believe themselves to have been targeted, and reiterate that your company does not tolerate retaliation against a person who complains about harassment or discrimination. Spell out what retaliation means. � Don’t create a paper trail of how you informed employees about your anti-harassment and discrimination policies. An employee who fails to use an employer’s reasonable complaint procedure within a reasonable time may find his or her damages limited if he later sues. This is known in California as a McGinnisdefense. An employer should consider requiring all employees to sign off on having received and read harassment and discrimination polices. Have employees sign twice a year for good measure. During litigation, the only response a plaintiff can have when faced with numerous copies of his or her signature on harassment policies is, “I didn’t read it before I signed.” � Don’t train supervisors to identify harassment or a harassment complaint. Once you put the policy in place, make sure front-line managers know what constitutes harassment and discrimination, and how to respond when they receive a complaint. California law now requires employers of 50 or more total employees to provide sexual harassment and discrimination prevention training to its supervisors. Every supervisor must receive a minimum of two hours every two years. Although employers with fewer than 50 employees are not obligated to train their supervisors, the smaller employer should do so, and consider more frequent trainings. Two hours may not be long enough to alter cultural resistance or indifference to legal norms of behavior in the workplace. � Don’t train supervisors to ask questions. The typical discrimination complaint when first made may not mention the words discrimination or harassment. Complainants may be crying, raging, mortified or understated. The first complaint may sound like “I don’t like the way X talks to me.” It is incumbent upon the employer to train supervisors to ask enough questions to elicit factual information about the substance of the complaint, or if they do not feel comfortable doing so, to immediately refer the complaining party to someone who is competent to handle the situation. � Make the complaint process difficult. In a common scenario, an employer’s complaint process requires an employee to report harassment to his or her immediate supervisor � often the very person who has engaged in allegedly unlawful behavior. Thus a prudent complaint procedure offers at least two or preferably more routes through which to register a complaint. As an example, an employee may complain to his or her supervisor, his or her supervisor’s supervisor, the human resources department, a toll-free complaint line or to an e-mail address (but be sure that e-mails and voice mails are checked twice daily and that someone is assigned to follow up on the complaints.) Once an employer is on notice or shouldbe on notice (the prudent employer does not park its head in the sand, hoping that bad vibes will somehow resolve on their own) for potential harassment or discrimination in the workplace, the employer has a legal obligation to conduct a prompt, reasonable investigation and to fix the problem. � Make the complaint and investigation process humiliating. Investigation strategies differ from workplace to workplace, depending on the sophistication of the players, potential language and cultural barriers, willingness of employees to cooperate, and the history of the conflict. It is clear, however, that before an investigation is complete, certain events should not occur: neither the complainant nor the respondent should be threatened, intimidated, coerced or punished in any way unless the employer is confident that such action can be justified during litigation two years from now. An alleged perpetrator who is later cleared of having done anything wrong can turn around and sue. If the complainant is placed on paid administrative leave, the employer should consider placing the alleged perpetrator on paid administrative leave until the facts are clear. Where serious allegations are made and there is evidence to sustain them, it may be appropriate to issue a written warning to the perpetrator to stay away from the complaining employee, and not to engage in any intimidation towards him or her. Unless the complaining employee is prone to violence, sending an identical letter to the complainant, however, is likely to aggravate an emotional situation in which the complaining employee believes him or herself already to have been victimized. � Set the complaining employee up for termination. Your employee’s future attorney really hopes you do this. A retaliatory termination can look like this: an employer receives a complaint from an employee, decides the complaint has no legitimacy, or that the complaint was raised just to protect that employee from a bad performance review, and that now the employee has to go. As tempting as it may be to want to fire an employee who goes out on stress leave just as his annual performance review is about to start � and it’s a bad review � retaliatory termination can make an otherwise garden variety harassment complaint extremely costly, both to litigate and settle. Examples of retaliatory set-up occur when the employer starts documenting the complaining employee, but not anyone else; giving performance reviews only to the complaining employee; or targeting the complaining employee for infractions of company policy that nobody else is counseled about. If you have never put anyone else in the company on target for progressive discipline, now is not the time to start discipline for only the complaining employee. � Move the complaining employee, not the perpetrator. You have conducted an investigation and concluded that the complaint had merit. You have moved the complaining employee to a location that is five miles further from her home than where she used to work. The perpetrator, who is a supervisor, is still grinning lecherously at subordinates from the same office where he leered at the employee you just moved. Moving a complaining party will be treated by his attorney as retaliation if the move or change in circumstance causes a significant, negative change to his working conditions. Do a close comparison before deciding that the two facilities are equal. You may think it’s only five miles, but your former employee’s attorney will find out during discovery that the “new” facility lacks air conditioning, or that it’s known as the place where “bad” employees are sent, or that the building has a mold problem which you knew about. And if the perpetrator has not been moved, depending upon what else is going on in the workplace that couldlook like retaliation. � Don’t check back with the complaining employee. A lot of employers make the mistake of telling an employee who has complained about harassment, “Check back with me if it happens again,” or “If it happens again we want to hear about it.” The chances are very good that when harassment has occurred once, and the perpetrator is still in the workplace, harassment will recur. It’s human nature. The “perpetrator” is likely to be angry, or not completely finished, or both. Others may exhibit resentment towards the complaining employee by shunning him or her. And this time, if you have not been checking regularly with the complaining employee, the way you will learn about repeated harassment is when your HR department or reception desk receives an administrative charge from the EEOC or DFEH preliminary to a lawsuit. A smart employer will provide an employee who has been harassed or discriminated against in the workplace with telephone numbers and e-mails to contact the people or person in the company who can make immediate changes if harassment recurs. The employer also will check back with the complaining employee once a week, and then once every two weeks, and then once a month, with a personal visit, at a time when both the visitor and the former complainant have time to engage in substantive conversation. � Don’t learn from experience. Juries will punish employers who don’t heed warning signs in the workplace. If harassment is occurring in a remote location, it is time to travel to the office and investigate. It may become necessary to install an HR department or person at that location for a period of time, but one of the worst mistakes employers make repeatedly is assuming that a problem is taken care of because nobody is complaining � at this moment. Discrimination is a signal that the workplace is troubled. Policies may need to be reconsidered, written for the first time, abolished or translated into several different languages to accommodate an ever-changing workplace. Paying more than lip service to harassment may be what saves an employer from taking a significant hit from a jury. Short of obtaining a release or waiver, there are no guarantees that an employee will not sue, and some employers will just have to wait out the statutory time limits to see how a story ends. The best protection against a lawsuit is the implementation of fair and impartial personnel policies that comply with, or exceed, the requirements of the California Fair Employment and Housing Act; and training of front-line managers in the identification of, and legally appropriate response to, even an appearance of harassment or discrimination. Judith Wolffhas been practicing employment litigation, plaintiff’s side, in the Bay Area since 1994. She recently founded Wolff& Associates, a workplace investigations and compliance training service for small employers. For more information, visit www.wolffandassociates.com. � Practice Center articlesinform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissionsor questions at [email protected].

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