Acceptable behavior Featured

7:00pm EDT February 24, 2008

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 amarsh@sommerbarnard.com.