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What's
The Problem?
For
an employer, the problem is the decision by the United States Supreme
Court in 1998, which said that in order to hold a company liable for the
discriminatory or harassing actions of its supervisors, it is no longer
the burden of the employee to prove that a company had knowledge of the
bad acts of its supervisory staff. It is now the burden of the employer,
to show that it did everything humanly possible to seek out, and
prevent.
What
This Means to Your Company
This
new position means that if an employer fails to meet this burden, it
ABSOLUTELY WILL BE HELD LIABLE FOR THE ACTS OF ITS SUPERVISORS —
WHETHER IT KNEW ABOUT THEM, OR NOT!
And
that can mean serious consequences when that employee files a charge
with the Equal Employment Opportunity Commission, (EEOC), the
Pennsylvania Human Relations Commission (PHRC), the Philadelphia
Commission on Human Relations (PCHR), or ultimately, with the federal
court of the United States.
What
You Can Do To Protect Your Company
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DOCUMENT
YOUR POLICIES. Your
most important weapon in the fight to avoid litigation is a strong
and comprehensive written policy on harassment and discrimination.
Under the new law, you must be very specific about the mechanisms
for reporting the actions, investigating the actions, and remedying
the actions.
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EDUCATE
YOUR PEOPLE. Simply
writing out a policy and sticking it into your Employee Handbook
will not be enough under the new law. You must, pro-actively,
educate your staff on the new policies and procedures.
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TRAIN
YOUR PEOPLE. Once
your people understand your policy, will they understand what
harassment is? You must be certain that your employees can recognize
actionable harassment and discrimination, and that they will know
how to handle sensitive situations when they arise, before those
situations turn into crises.
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MONITOR.
Make sure you know
what is going on in your company. Make sure you are setting the
example for what behaviors will, and will not be tolerated by
management.
Are
All These Steps Really Necessary?
Like
a pre-nuptial agreement, these precautions are only necessary if a
problem develops. Unlike a pre-nuptial agreement, these precautions may
prevent the problems altogether. In light of the Supreme Court’s 1998
decisions, these precautions are your ONLY possible defense in the event
of a charge of harassment. Can your company do without them?
I
Can Help
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POLICIES:
I can create comprehensive, state-of-the-art harassment and
discrimination policies for your company, or I can review your
current policies to assure that they conform with the requirements
of the new law.
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EDUCATION:
I can conduct in-house classes for your employees to educate them
about the procedures for using the new policies.
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TRAINING:
I can conduct training sessions for your staff, to sensitize them to
the issues of harassment and discrimination, and prepare them to
deal with difficult situations as they arise in the workplace.
Training sessions can run from one hour, to half-day, to full-day
sessions, depending on the size of your staff.
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CONSULTING:
I’m just a phone call away, whether you need instant advice on a
critical situation, or general advice on a new policy consideration.
Can
You Answer These Questions?
| Who
is the most appropriate person to designate as the one
to whom acts of discrimination or harassment should be
reported? |
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There
is no right answer to this question, and there should
not be just one person to whom employees can report
incidents. |
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| Who
is the best person to conduct the investigation of the
complaint? Should it be the department supervisor, the
human resource manager, or the company attorney? |
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The
company attorney may be the worst choice, as s/he may
become a fact witness in the lawsuit, and be precluded
from representing the company. |
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| What
is the proper punishment for an employee who is found to
have harassed or discriminated against another employee?
Should the harassed always be fired? |
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The
company must make the punishment fit the crime, or it
subjects itself to the possibility of a lawsuit from the
harasser. |
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| Who
decides if a manager’s behavior was harassment, or
not? Is harassment always "in the eye of the
beholder?" |
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The
Supreme Court continues to struggle with definitions of
harassment — you need to know what the most current
definitions are! |
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