Posts Tagged ‘Harassment’

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.

Minimizing Potential Liability for Workplace Harassment Issues

Tuesday, May 28th, 2013

John GuptonCAI’s Advice and Counsel Team answers several questions from members daily. One question that the team members often receive deals with workplace harassment—what should our organization be doing to minimize our potential for liability for workplace harassment issues? In today’s post, Advice and Counsel Team Member John Gupton provides a number of solutions for minimizing harassment at your workplace:

In regard to the issue of unlawful workplace harassment, a company must show that it took immediate and appropriate action to eliminate the offensive conduct. Prevention is the best tool for avoiding harassment charges. For this reason, employers should:

  • Maintain a written policy on harassment, communicate it to all employees, and provide multiple avenues for employees to register any complaints.
  • Provide training to supervisors on a regular basis.
  • Make it clear to all supervisors and employees that harassment on the job will not be tolerated.
  • Place particular emphasis on the company’s strong disapproval of this conduct.
  • Require members of management to report any known harassment.
  • Thoroughly investigate any claims of harassment.
  • Provide appropriate discipline in cases of harassment.

Furthermore, under EEOC enforcement guidance, an employer’s workplace harassment policy must prohibit harassment on all protected categories, not just sex harassment (i.e., harassment on the basis of race, color, sex, religion, national origin, age, genetic information and disability status). According to these EEOC guidelines, the policy must include at a minimum:

  • A clear explanation of the prohibited conduct.
  • Assurance that employees will be protected against retaliation.
  • The ability to make a complaint to more than just the employee’s immediate supervisor.
  • Confidentiality– to the extent possible.
  • Prompt, thorough and impartial investigations.
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

If you have questions regarding harassment, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

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

5 Egregious Errors that Endanger Employment Investigations

Tuesday, October 18th, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Now that the Supreme Court has officially recognized “cat’s paw” liability for employers whose decisions are tainted by an individual with an unlawful motive, it is more important than ever for employers to conduct workplace investigations that are above reproach.

And because it’s more fun to talk about mistakes than what people do well, I’m going to focus on five workplace investigation errors that I see regularly.

Error No. 1. The man* who knew too much. This is a very common mistake when the investigator is someone from the same worksite as the individuals involved, and knows the “cast of characters.” “TMI” is not a good thing. Hear me out. The problem is that someone who already knows the cast of characters can have a very difficult time keeping an open mind.

*The masculine shall be deemed to include the feminine, and vice versa.

Ideally, a workplace investigation will be done by someone from outside who can investigate objectively. But if the investigation absolutely must be done by someone who knows everyone involved, the investigator should keep in mind the cliche, “Even a stopped clock is right twice a day.” Just because the complaining employee is a known drama queen and the accused is a thrice-decorated war hero who rescues little kitties from the tops of trees and gives all of his money to the poor (or the complaining employee is a lovable Sunday school teacher who drives only 15 miles a week, and the accused is Tiger Woods), it is possible that, in this case, just this once, the roles are reversed. OK, probably not, but at least as an investigator you should keep that attitude to the best of your ability. You can turn your brain back on when it’s time to assess your evidence and determine what really happened.

Error No. 2. Dangling leads. I cannot tell you how many times I’ve been asked to review an employer’s investigation, and the notes say, “Joe didn’t see Bill make a pass at Mary, but he said that we should talk to Susan, who works in the same area and might have seen something.” I scour through the rest of the notes to find the interview of Susan, to no avail. The reason? Nobody followed up on Joe’s suggestion that Susan be interviewed. Fortunately, we usually catch this type of thing while there’s still time to go back to Susan and find out what, if anything, she knows. But companies shouldn’t have to waste precious legal fees hiring lawyers to point out such obvious omissions to them. (Save us for the hard stuff!) Investigators need to follow all leads provided by the accuser, the accused, and the witnesses. If they don’t, and if the mistake isn’t corrected before there is an EEOC charge or lawsuit, you can bet the government/plaintiff’s lawyer will use the lack of follow-up to its/his/her advantage.

Error No. 3:  Accepting conclusions as “facts.” Another mistake I see all the time. Investigator asks, “Is Tifanyea sexually harassing the men she works with?” Amber replies, “I feel that Tifanyea is very inappropriate with the guys.” Or my personal favorite: “Oh, you know, Tifanyea is Tifanyea.” These are not facts. These are conclusions, and they don’t tell you anything. A good investigator will say, “Amber, tell me what Tifanyea does with the guys that you consider inappropriate,” or  “Tell me what you mean when you say Tifanyea is Tifanyea.” If the investigator doesn’t do it, you can be sure that the EEOC or a plaintiff’s lawyer will.

This, by contrast, is a factual statement: “Yesterday, I overheard Tifanyea telling Dave that his jeans really made his butt look cute. Dave turned bright red and walked away.” Or this: “Every day, Tifanyea is talking about how ‘hot’ Steve is. Steve never says anything to her, but he’s told me several times that he is uncomfortable and tries to avoid her.”

See the difference? Now you have some information! 

Error No. 4: “You don’t wanta get mixed up with a guy like me, Pee-wee. I’m a loner. A rebel.” And you know those “Do not remove under penalty of law” tags they put on mattresses? Well, I cut one off! (Sorry – I got carried away.) In all cases, and especially if the investigation is conducted by the man* who knew too much (see Error No. 1), someone else ought to review the findings of the investigator to make sure that all leads have been followed (see Error No. 2) and that conclusory statements have been supported by facts (see Error No. 3), and that there is adequate factual support for the preliminary conclusion of the investigation. The reviewer should also assist in determining what really happened and what the appropriate action should be. The reviewer ideally should be an in-house attorney, a corporate-level Human Resources professional, or an outside attorney, preferably with expertise in employment law. He or she should also be someone who is not personally involved with the cast of characters, or only minimally involved. 

Error No. 5: “We will keep everything you say strictly confidential. Except, of course, when we talk about it.” It is impossible to keep an investigation completely confidential. You cannot interview accused parties or witnesses without disclosing at least some of the reason for asking the questions. If you tell an employee that everything will be kept confidential, and then she finds out that you’ve been talking, she is rightfully going to be ticked off at you. Better to say, “We will keep everything that you say as confidential as we can, but of course we may have to talk about this with other people involved in the investigation. I can assure you that we will not discuss this with anyone who doesn’t have a legitimate need to know.” Employees are not stupid. They will understand and will appreciate your honesty.    

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information for conducting successful employment investigations.  The conference will also provide news and material on several legal topics relevant to employers, including ADA, Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.