Posts Tagged ‘discrimination’

Handling Third Party Harassment

Thursday, August 11th, 2016

Employers have the responsibility to protect their employees from workplace discrimination and harassment, whether by other employees or third parties.  Handbooks typically include EEO policies, and anti-discrimination/harassment policies, as well as reporting procedures and a commitment to investigate and resolve any issues.  Clearly these provisions cover co-worker situations, whether a peer or management employee, and the company has more control over that process.  But what do you do when the alleged discrimination or harassment complaint involves a customer, vendor, contractor or other third party?  All of these situations are tricky, but perhaps the most difficult is when the alleged harasser is a customer.  If you’re a B2C company selling to the public, the “customer / alleged harasser” is typically one individual and you won’t have to work with another company to resolve it.  If you’re selling B2B the alleged harasser is an employee of your customer so the lines of responsibility can get blurred.  Both situations present unique challenges.  Let’s focus on a B2B scenario today since that situation can be more tricky. thQE06GKOF

First and foremost, regardless of who is doing the harassing, you want it to stop.  You’re obligated to provide a harassment free workplace.   If that’s not clear at your workplace, it needs to be. However, determining if harassment occurred and if so making it stop will be handled differently when a customer is involved.

Do You Notify the Customer?  Short answer – Yes. With customers it’s a more difficult conversation, but of course, no customer, client, vendor, etc. is more important than the legal rights of your employees. While conversations with clients about these issues are surely uncomfortable, people interacting with your employees need to realize that it is not appropriate to engage in this way with staff of the company and it must stop. If the behavior doesn’t stop, the employer needs to take such action as removing the client/customer from the workplace in the future.  Now that’s an answer you would expect me to give right?  But many of you are thinking – “If only it were that easy?” What if an important customer is involved?  Will you get blamed for jeopardizing the account over potentially a frivolous charge?  What will your Sales Director say – should you tell him?  Will your Leadership team / board / your boss stand behind you? What if the customer’s employee claims your employee was actually doing the harassing?  Questions like these usually make it hard for you to just swiftly and unilaterally take action in harassment cases involving a customer.

So now what?  Let me start here – if you are a member and find yourself in this situation, give anyone on our Advice & Resolution team a call. These cases are tricky and can go in many different directions based on your situation.  Here are the steps I would generally recommend you take:

  1. Conduct what I call a “pre-investigation.” You want to quickly get an idea of what you’re dealing with here. Take no more than a day, two at most.  Get the employee’s statement regarding the inappropriate conduct, date, times, and witnesses and ideally in writing.  Talk to available witnesses.  As with any harassment case, it’s critical that you understand the nature and context of what has occurred. Is this an affair gone bad?  Or does it involve a series of inappropriate comments? Were both parties engaging in the inappropriate behavior until one day a line was crossed?  Is the harassment on-going or has it stopped?
  2. At this point, you should have a reasonable idea as to what was going on, and who is at fault, at least from your side’s vantage point. That will shape how you approach the customer.  I wouldn’t pick up the phone and call the customer just yet.  You need another leader involved.  Ideally your boss.  You don’t need to divulge names, but you want to make sure they are aware you received a compliant, you investigated it, your general findings, and your planned approach with the customer.  I’m not suggesting you get permission, however, they might not agree with your course of action and good to have that discussion now.  They may also have relevant suggestions for you.
  3. After you have received all relevant information about the complaint and made sure that information is included in written form, the allegations should be promptly referred to an appropriate customer representative.   Since the alleged harasser is a customer’s employee, the customer is obligated to investigate.  The person you choose to contact should be considered carefully and should be in a position to both understand the implications of what has occurred and have the authority to take appropriate action. Appropriate contacts could include human resources, an officer or a manager. When in doubt, in most cases, the HR Manager should be contacted.  The person to whom you report the complaint should never be implicated in any way in the harassment that’s been alleged. When you report the complaint, you should ask that the customer investigate, take whatever corrective action is necessary and keep you informed. You want prompt corrective action to be taken if warranted. If it appears that the customer is dragging their feet, you should discuss that issue with the customer.
  4. Sometimes these cases go smoothly – the complaint is clear, it’s definitely harassment, the harasser is clearly guilty, and the customer takes swift action to stop the behavior. Other times, two very different accounts of what has happened exist and two very different courses of actions are proffered.   If you find yourself in the latter case, you’ll be glad you involved your boss / leader in the case.  The customer may believe your employee is equally at fault and advises you to take action against them.  Any move initiated by the company should not appear retaliatory.  Or they may refuse to take any action.  You may have to get attorneys involved.  Make sure on your side that if appropriate based on your investigation to remove contact between the employee and the harasser.  You may ultimately have to make a decision as to the future of your relationship with the customer.

One old axiom of business is that the customer is always right.  As we see here that may not always be true.  When a customer engages in harassing behavior, you need to act, but the path isn’t always clear.   CAI will help illuminate your path to the right resolution for your business.

Why Your Company Needs an Up-To-Date Employee Handbook

Tuesday, June 5th, 2012

Although there is no federal law that requires organizations to produce employee handbooks, providing them for your staff helps create positive employer-employee relationships and protects your organization from potential wrongful harassment, termination or discrimination lawsuits.

Here are two reasons why handbooks benefit employers and employees:

Promotes a Positive Workplace Atmosphere

Company handbooks provide employees with a set of clearly defined policies, rules and guidelines. Well-written handbooks also outline consequences for not following company policies, as well as where employees should turn to if they have a problem. Having this information on hand helps workers understand their employer’s expectations and what they should expect from their employer.

Because each employee receives the same handbook, they all review the same information. These documents set the precedent for fair and consistent employee treatment. To ensure effectiveness and understanding and to avoid low employee morale and job dissatisfaction, keep your handbook clear, concise, easy to follow, and up to date.

Is a Legal Document

Although you don’t want to fill your employee handbook with confusing legalese, it can serve as your biggest protection for or evidence against your company in a lawsuit. Many courts see employee handbooks as contracts between an employer and its employees. For this reason, avoid using promises, guarantees and entitlements in your handbook because if left unfulfilled, those promises could be used against you in a lawsuit.

Making sure you follow the policies and procedures outlined in your employee handbook is critical.  Routinely adhering to your handbook will be one of your best defenses. However, the opposite is also true. If you have several rules that you don’t follow, your current or former employees can use them against you. Regulations that you seldom enforce or frequently change should be omitted from your handbook to safeguard your organization.

It’s impossible to cover every workplace situation in your handbook because additional issues will always occur after you finalize it, so keep your policies appropriately flexible. Additionally, putting a statement in your handbook explaining that the document is not a complete collection of company policies and that your company reserves the right to change any policy is suggested.

If you have questions or would like your company handbook reviewed, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: West Point Public Affairs

A Rising Concern: Discriminating Against the Unemployed

Tuesday, September 13th, 2011

JobseekerJobseekers are up against many challenges as America continues to face its worst economic downturn since the Great Depression. Their frustrations peak when they see job postings that include language such as, “No unemployed candidates will be considered” or “Only the currently employed should apply.” This type of wording is currently prevalent on several job boards, including the big players, like Monster and Indeed.

Fourteen million Americans are currently unemployed, and six million of them have been without a job for more than six months according to the National Employment Law Project (NELP). Because the number of jobs the government was hoping to create fell below estimates, unemployed Americans who are seeking positions are playing on an intensely competitive field. In its briefing paper that highlights unemployment discrimination, NELP states that there are nearly five unemployed job seekers for each job opening. To make matters worse, organizations that range from hotels, restaurants, advertising agencies, law firms and universities are limiting unemployed jobseekers’ opportunities by only encouraging people who have jobs to apply to their positions.

Why the Catch-22?

With high unemployment lasting for the past three years and unemployment periods averaging up to nine months, it appears that this exclusionary concept is perpetuating the vexation of 14 million Americans.  NELP reports that more than half of the job postings with discriminatory language against the unemployed come from staffing agencies, but other industries, which include white collar and blue collar jobs, also participate in the practice.

Employers and staffing agencies that look for candidates who are currently working cite a number of reasons for barring the unemployed. Some employers place the blame on recruiting firms that they utilize, claiming that they were unaware of the language and tactics they used to attract talent. Others say the discriminatory practice is an easy way to filter the plethora of applications that they receive. Still, others suggest performance reasons, including a deterioration of skills because of their unemployment, as well as the possibility that they were not laid off because of the recession, but because they were unable to do their jobs well.

Finding Solutions

As expected, the Equal Employment Opportunity Commission (EEOC) is investigating measures it can take to prevent employers from discriminating against the unemployed. Proving that the restrictive language that employers use violates discrimination laws will be hard according to legal experts. Unlike race or gender, the unemployed is not a protected status. However, research is showing that unemployment discrimination is disproportionately negatively affecting blacks, Hispanics and older people. If substantial evidence is found that this language adversely affects various populations, the EEOC might have a case to make discriminatory ads illegal.

The American people are also discontent with employers using discriminatory measures during the country’s most devastating recession. A survey conducted for NELP by Hart Research Associates found that 80 percent of participants thought the refusal to consider unemployed job applicants was very unfair and 10 percent saw it as somewhat unfair. More than 60 percent of those who participated were in favor of proposing legislation that would make it illegal for companies to discriminate against qualified candidates because they are unemployed.

jobseekerRepresentatives Rosa Delauro (D-CT) and Henry Johnson, Jr. (D-GA) introduced the Fair Employment Opportunity Act of 2011 on July 12 to address the growing concern of employers’ practices. If passed, the bill would prohibit employers and recruiting agencies from refusing to consider applicants who are qualified but are not currently employed. In April New Jersey passed a bill similar to the US representatives’ proposed legislation, and now it is illegal within the state to use language that excludes the unemployed in job advertisements.

Because unemployment rates have yet to come down and job creation has become stagnant, employers should take caution when considering posting language about an available position.  The EEOC and NELP are only two of many organizations that are analyzing the procedures of companies that discriminate against the unemployed. If your organization would like information on creating fair, informative and correct job descriptions, please contact a member of Advice and Counsel at 919-878-9222 or 336-668-7746.

Photo Source: Jared Hatfield, bpsusfp