The “Dirty Dozen”: Top 12 employer harassment mistakes

by Constangy, Brooks, Smith & Prophete, LLP
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According to statistics collected by the Equal Employment Opportunity Commission, harassment charges have stayed relatively stable over the past three years, and the number of “cause” determinations has actually declined. (Yay!) Yet employers should still be concerned because the monetary relief has increased dramatically – from $82.1 million in fiscal year 2012 to $97.3 in fiscal year 2013. Dollars going up while cause determinations go down? (Boo.)

In other words, it isn’t Miller time for employers just yet.

Click here to see video.

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

1. 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.

Dirty Dozen.Marvin

“You’ll cover all types of harassment in your policy,
and you’ll like it!”

2. 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.

3. 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.

Register here for our webinar, “Labor Board Takes Aim at ‘Joint’ Employers,” which will be from 1 to 2:30 p.m. Eastern Thursday, August 21. If the National Labor Relations Board redefines the test for determining joint employer status, it will affect employers in virtually every industry and segment of the economy. Presenters will be Dan Barker, Tim Davis, Dan Murphy, and Kim Seten. Don’t miss it!

4. No training.

5. Training that does not occur unless you’ve been sued. (If you get sued all the time, I guess this is all right.)

Dirty Dozen Cassavetes

“Gee, I wish somebody would sue us, so’s we could get our harassment training.”

6. Supervisors who, when receiving a harassment complaint, start investigating (or, heaven forbid, making determinations) on their own.

7. 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.

8. 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.)

9. 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.

Dirty Dozen.Shootout

“ZERO TOLERANCE, BABY!”

10. Underreaction. For example, giving a writeup to the accused after you’ve determined that he sexually assaulted his assistant in the supply closet.

11. 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.

12. 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.

If it were me, I’d put follow-up “appointments” on my calendar so I wouldn’t forget to do it. Maybe once every 30 days to start, and if everything seems to be all right after the first few talks, you can gradually space them farther apart until you phase them out completely.

SCORE – How did you do? 0=Maj. Reisman (Lee Marvin); 1-3 = Wladislaw (Charles Bronson); 4-6 = Gen. Worden (Ernest Borgnine); 7-9 = Col. Breed (Robert Ryan); 10-12 = Maggott (Telly Savalas).

Just in case you have no idea what these movie references are about . . .

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

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