Having been involved in more than a thousand investigations, I have learned some important things along the way about how organizations of any size can prevent and handle complaints of discrimination, harassment and/or retaliation.
While no company actually condones harassment or discrimination, many are unaware that some seemingly innocuous actions – or even those that may be undertaken with the best of intentions – can actually exacerbate a situation and bring a discrimination lawsuit. Here are some important things for you to consider in your efforts to avoid a claim of discrimination.
1. Nip problems early on. Generally, your chances of being found legally liable are greatest when problems are severe and pervasive. Unfortunately, some companies wait until that point to start addressing their workplace issues. Accordingly, make sure your organization’s policies have a threshold that is higher than the law, and don’t wait until a problem is severe and pervasive before you begin to address the problem.
For example, if you know that one of your supervisors has made unwanted advances toward co-workers but, to date, no employee has filed a lawsuit or officially logged a complaint, take the time now to address the problem. By waiting until a problem escalates, the organization loses morale and productivity. And it is more likely to face legal liability.
Overall, your organization’s workplace policies should be oriented towards building a culture of treating people fairly and with respect and ensuring that issues are addressed quickly and effectively even after an isolated incident. In other words, set the expectation that employees need to behave better than just complying with the law.
2. Engage your workforce with practices that will set the right tone for minimizing discrimination and harassment issues.
- Conduct regular (at least annual) interactive, meaningful and effective training regarding discrimination, harassment and retaliation, with a focus on the organization’s policies relevant to these topics.
- Establish leadership training (not just management training) for all people in supervisory positions, not just senior executives.
- Avoid a “check the box” mentality with regard to training and prevention efforts.
- Track turnover rates to ensure you’re not losing key classes of individuals, such as women or minorities. Although you may not believe you have a workplace issue, the data may tell a different story.
- Hold people accountable for compliance with the organization’s relevant policies such as those concerning discrimination/harassment policies and ethics. If they violate those policies, take action even if the issue is not escalated by an employee.
- Build into your performance review system accountability for how people treat each other, particularly for those in leadership positions.
3. Take seriously ALL complaints and concerns. When you receive a concern or complaint, then you should ensure that a prompt, thorough and neutral investigation is done. Remember that a complainant (and a jury) might not view your own legal counsel and human resources department as neutral parties, and accordingly you may want to involve neutral outside assistance (such as an independent attorney or HR consultant if your state allows HR consultants to perform such work).
4. Remedy all problems revealed by the investigation process. The more willing you are to ensure that the complainant’s concerns are addressed and that actions are taken to prevent a recurrence, the more likely the employee is to feel respected and understood. At the same time, you should be aware that retaliation against an employee for bringing a claim of harassment or discrimination is, in itself, a serious issue. Claims of retaliation constitute almost half of all EEOC claims brought forward – more than claims of harassment or discrimination. So how you handle a claim is, in itself, critical to instilling a positive work environment and to avoiding lawsuits and enforcement actions.
5. Recognize that no business is above the law. Some executives think that that their businesses are either so large and influential, or so small and insignificant, that no one would ever bother to sue them. This is almost never true. Attorneys who represent complainants/plaintiffs are motivated to sue because in many states, if they win a discrimination or harassment suit, their fees will be paid by the defendant in the case, and thus they are incentivized to find and bring discrimination claims. And even if you win the suit, you will still spend significant resources defending yourself, not to mention all of the negative publicity your enterprise could receive as the legal process plays out. Accordingly, it is always best to avoid legal action and the best defense is ensuring your policies and practices are compliant and sound.
Taking these actions to prevent and address concerns of discrimination, harassment and/or retaliation may seem onerous, but they pale in comparison to what could happen if you don’t take a proactive approach. Months of depositions and document discovery, followed by a jury trial, with the prospect of having to pay not only for the company’s defense but also the plaintiff’s, will make you wish you had chosen the “ounce of prevention” strategy for avoiding claims against your company.
By Cynthia Maxwell Curtin, of counsel, Curtin & DeJoseph, PC firstname.lastname@example.org