Acceptable behavior

Times have changed and so have
accepted behaviors within a place
of employment. An employer that doesn’t have a clear policy on how
employees should report harassment and
discrimination complaints is simply asking for trouble. Andrea Marsh of Sommer
Barnard PC’s Litigation and Labor and
Employment Law Groups says a clear
policy allows an employer to become
aware of any complaints and also protects it from potential litigation.

Smart Business spoke with Marsh on
just what a good harassment and discrimination policy is composed of and the
importance of documentation.

Why is it important to have an effective complaint policy and procedure?

Every employer should have a clear policy
setting out how and to whom employees
report any complaint of discrimination or
harassment. An effective complaint policy
and procedure serves two purposes: First, it
ensures that an employer is aware of any
employee complaints so that it can promptly
investigate them and take any action necessary to correct the situation. The best way to
prevent any potential liability under federal
equal employment opportunity laws is to
ensure that the workplace is free of discrimination and harassment. Second, having an
effective policy is critical if the employer is
later faced with a discrimination, harassment
or retaliation claim because it allows the
employer to show what the employee could
or should have done to address the situation.

What comprises an effective complaint policy and procedure?

First, all employers should have a clear policy that retaliation against any applicant or
employee making a complaint will not be tolerated. Second, the employer should identify
the person or people within the organization
to whom an employee can report any allegations of discrimination or harassment. There
should be at least one person outside of an
employee’s direct chain of command to
whom the employee can make a complaint.
The policy should be communicated to
employees clearly and regularly. The employer should ensure that supervisors, in particular, understand the employer’s policy barring
retaliation. Once the employer has an effective complaint policy in place, it must be sure
to take any employee complaints seriously,
gather any information relevant to the complaint and respond to it promptly.

What are the risks associated with retaliation
and what can a company do to ensure
employees avoid this?

Federal employment laws protect any reasonable conduct by employees in opposition
to an unlawful employment action and any
reasonable participation by employees in the
investigation of a claim of an unlawful
employment action. An employer can be held
liable for retaliation if it takes any adverse
employment action against an employee
who’s ‘opposing’ an action he or she reasonably considers to be discrimination or harassment, or ‘participating’ in an internal or
EEOC investigation of the alleged discrimination or harassment. The employer can be
liable for retaliation even if it’s later determined that the activity opposed by the
employee is not discrimination or harassment. It’s important for employers to communicate clearly with supervisors in particular regarding their policy against retaliation
and what kinds of actions may violate that
policy. Any supervisor or employee involved
in an investigation of another employee’s discrimination or retaliation complaint should
be reminded of the policy prohibiting retaliation, and the employer should document
these conversations.

Why is documentation so important in a
harassment or discrimination case?

Good documentation showing the steps
taken by an employer to investigate and, if
necessary, to remediate a discrimination or
harassment complaint is critical if the
employer is ever required to defend a retaliation claim. In defending a retaliation claim,
the employer will be required to show that it
conducted a prompt and thorough investigation of any complaint made by an employee. Documentation is also important to
allow an employer to later show the basis of
adverse employment actions that it takes.
For example, if an employee is terminated
for performance reasons, the employer’s file
should reflect the employee’s performance
deficiencies and any steps taken by the
employer to remedy those issues. In some
cases, good documentation can mean the
difference between getting out of a case
early or even preventing a lawsuit in the first
place and having to defend an action
through trial. In that way, a well-documented employment file reduces the employer’s
risk associated with harassment, discrimination and retaliation claims.

No matter how the case is resolved, how
does a company recover from it?

Retaliation claims can be expensive for
employers to defend, even if the employer is
ultimately successful. These cases can also
be disruptive to the workplace. The best way
for employers to reduce their risk of facing
an employee retaliation claim is to have an
effective complaint policy and procedure
and to fully and promptly investigate any
employee complaints.

ANDREA MARSH is a member of Sommer Barnard’s Litigation and Labor and Employment Law Groups. Reach her at (317) 713-3500
or [email protected].