An incident happened at your company. Specifically, one employee is claiming that her supervisor has repeatedly asked her out, has sent her lewd email and text messages, inappropriately touched her and, continues to harass her. You, the supervisor’s boss, hear about it. You act immediately. You get them both into your office and decide to talk it out with them. At the end of this meeting, the supervisor apologizes and says he’ll stop. The employee who complained thanks you and they leave. You feel great. You just solved a problem, without involving H.R., without involving lawyers. Common sense prevailed and all is well–but is it? You later learn that the harassment did not stop. The employee who complained quit, and guess what? She’s suing the company, her supervisor and you for sexual harassment. Whaaaaat?? How can that be? Let’s look and see what’s wrong with this picture.
(image from gendermatters.in)
Let’s start with the positive. What did the supervisor’s boss do right? S/he appears to have taken the complaint seriously. S/he showed that s/he cared. S/he took steps intended to solve the problem. S/he meant well. Notice we do not know what was said, and we do not know how the employee perceived that meeting.
What’s wrong with what this boss did? At the risk of sounding incredibly cynical, this boss made the mistake of applying what s/he thought was common sense to a potential legal problem. Occasionally common sense and legal issues intersect. Often they do not, however and this scenario is one example of that. The first mistake this boss made was to meet with the employee and the alleged harasser together. Note to self: In cases of alleged harassment or bullying, never, ever, ever, ever put the accused and the complainant together in a meeting. Why not? Often the complainant (i.e. alleged target) will feel ganged up on. Whether or not you intend it, the complaining employee will often assume or perceive that you are predisposed to believe the supervisor or, if it’s not a supervisor or manager, the accused. The complainant may not feel comfortable speaking openly about everything that happened in front of the person they are accusing. That brings me to the next point.
You may be hoping, and assuming that the meeting results in the harassment stopping. What if, as here, it doesn’t? What if it gets worse? What if the supervisor now insults the employee in front of her co-workers, threatens some other disciplinary action or even threatens to fire the employee? Now you have more problems. Not only has the harassment not stopped, not only might the employee have a valid claim that you took inadequate steps to stop it, but you will now probably face a retaliation claim. Since the employee quit, she will allege that in failing to adequately address the harassment issue, your company constructively discharged her. In other words, the harassment was so bad, and so severely impacted her work environment and her ability to do her job that she was in effect, fired.
What should you have done? Simply put, you should have referred the matter to H.R. Why is that better? That’s what they’re there to do. A properly trained Human Resources Department will investigate the allegations and will speak to the parties separately, and, ideally will also partner either with in-house or outside employment counsel to ensure that the matter is handled in compliance with federal and any state anti-discrimination laws. While you meant well, you unintentionally incurred liability for your company, the supervisor and perhaps yourself. What if your company is a small company and doesn’t have an H.R. Department? You still should not try to handle the matter yourself. If there is no designated point-person within the company, and if you are not the owner/CEO, asking him or her to consult with counsel may be your best bet.
What about the company itself? What should it do? If it does not have an H.R. Department, it should designate someone to deal with the types of issues an H.R. Department would. Outsourcing these functions might not be a bad idea. There are many good H.R. consulting firms out there. If your company does have a point-person, s/he should be properly trained to conduct appropriate investigations of harassment and discrimination allegations. The company should also train its managers to recognize when an issue might have legal consequences –and then turn the matter over the H.R. — or whoever is charged with fulfilling that function, and make sure they are properly trained to do it.
I think you get the point, so let’s leave it there for now. 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.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ