Does your workplace have anti-harassment policies? What about anti-discrimination policies? It probably does. If not it probably should. If ever an employee filed a charge with the EEOC or a state agency or sued, that’s one of the first documents an employer would have to produce. Not being able to do so could be the kiss of death. Suppose your company does have such policies. Suppose those policies are well-written and robust. Are you out of the woods? Well, no, not necessarily. You could still be facing an EEOC or comparable state charge, or a lawsuit. You could still lose. It happened just recently to a company that you’ve likely heard of and they will be paying big-time- up to $10.1 million to be exact. How and why did that happen? Read on to learn more…
In case you have not already guessed, I’m talking about Ford Motor Company. I’m assuming you’re familiar with that name. Ford agreed last week to pay just over $10.1 million to resolve an EEOC probe into allegations of racial and sexual harassment at two of its Chicago facilities. Specifically, a lawsuit initially filed by four women alleged that men at Ford’s Chicago Assembly Plant touched and groped them, exposed themselves and directed unwanted comments, stares and pornographic images at them. Over time the suit grew to include more than 30 female employees. Unfortunately, things did not stop there, however. Anyone who complained would allegedly be targeted by male co-workers, managers or supervisors, giving rise to retaliation claims as well.
Under the terms of the settlement, Ford will, in addition to the large pay-out, conduct regular training at its facilities over the next five years, disseminate anti-harassment and anti-discrimination policies, and report any complaints of harassment or discrimination to the EEOC. Of course, the settlement also includes a “no admission of liability” clause. They usually do.
At first glance, this settlement may sound like an appropriate and proactive way to deal with such allegations. The problem is, it’s not the first time that Ford has entered into this types of settlement, with a significant payout, to settle sexual harassment and discrimination allegations arising out of behaviors at its Chicago plant. In 1999-2000 Ford entered into a $8 million settlement to resolve two consolidated class action lawsuits by women at assembly and stamping plants. A federal court judge reportedly increased the award $9 million. The EEOC brokered that deal as well. Ford had also agreed to implement training designed to prevent future occurrences of discrimination and harassment and to increase the number of women in supervisory positions.
Ford had policies and procedures. Ford had trained its personnel on these very issues in the not-too-distant past. How then did Ford end up in this situation at least twice within less than 20 years? I mean, it’s one thing if a number of years later it had to settle similar allegations with one or two employees for a five-figure amount, but both these cases involved multi-million dollar settlements, agreements to train people — and, both times involved the same facility and both times the EEOC brokered the settlement. What’s up with that?
Now, I’m not part of the Ford Motor Corporation, but I can take some educated guesses. Frankly if they’re not true, they can still help you devise some strategies that should greatly reduce the chances of you ending up in a similar position to Ford. We know that Ford had anti-harassment and anti-discrimination policies in their Code of Conduct. We know that they likely did some training at some point after the previous lawsuit. Now, don’t get me wrong, policies and training are a great start. But, no, that’s not enough–especially in a company as big as Ford. So what else is there? What else can you do?
For one thing, don’t set it and forget it! In other words, the policies and the initial training are your starting points. There should be periodic review of policies, periodic refresher training, and monitoring compliance with the policies. All new employees should be trained. If you are training your employees and you are still noticing that the issue remains unabated or that things have not improved as much as you hoped, maybe the training itself and the policies themselves need to be re-visited.
Here is another possibility: re-visit your hiring and pre-employment screening practices. Job interviews typically focus on experience, but there is a trend toward behavior-based interviewing, which focuses on finding out how employees have handled certain situations in the past or would do so. (Click here and here for an overview and ideas.) Behavior-based interviewing may be of help in finding and hiring employees that fit in with your company culture and who will treat each other with respect. The point is to make sure you do not lose sight of the big picture.
Take all discrimination and harassment complaints seriously. Take prompt, appropriate action to investigate and properly discipline anyone found to have violated those policies.
Make sure that upper management conducts itself in accordance with its stated policies and values. If upper management appears to be disregarding anti-harassment and anti-discrimination policies –and, particularly if it is not held accountable when it does, you probably don’t need me to tell you that is sending the wrong message to the rest of your employees.
Don’t retaliate if an employee complains or cooperates in an investigation! Retaliation itself can give rise to a claim in its own right. If you or your management do anything that could be construed as retaliation toward any employee who does complain or cooperate in an investigation you could end up making a bigger payout on that claim than the underlying harassment/discrimination claim. In fact, even if the underlying discrimination or harassment claim is found to be without merit, your company could still lose on the retaliation claim. Is it really worth it to you?
I think (or at least I hope I’ve gotten my point across). Now go enjoy what’s left of your summer and I’ll see you next week.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
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