What You Don’t Know About Your Role in Preventing Harassment Can Hurt You
Content provided by the Women Presidents' Organization
By Katherin Nukk-Freeman
Suppose you are a manager in a company of 99 diehard Yankee fans and one lone Mets fan. As a member of the Yankee majority, you find it difficult to sympathize with the Mets outsider, who is not well-liked because of her sports affiliation, and perhaps as a result, not very successful at work. You give pay raises to all the Yankee fans, but decrease the lone Mets fan’s salary since you are overcritical of her performance because she is a Mets fan. Ultimately, you terminate her employment, and everyone breathes a sigh of relief.
Then the Mets fan sues you for unlawful harassment or discrimination. Does she have a good case?
People are often surprised to find out that the Mets fan has no case for unlawful harassment or discrimination, as there are no laws that make it illegal to discriminate against someone for his baseball team allegiance. An employee must have been the victim of discrimination because of some category which is protected by law, i.e., race, color, religion, sex, sexual orientation, national origin, age or disability, in order to make a case for unlawful harassment or discrimination.
Of course, the above treatment of the Mets fan is a perfect example of poor management and inadequate business relations, which do not help to create a positive work environment or to avoid disgruntled employees. Instead, managers should strive to go above and beyond what is legally required of them in preventing unlawful harassment and should also strive for fair treatment of their employees. And, in no case should managers or their employers neglect their responsibilities to prevent unlawful harassment or discrimination in the workplace. Doing so may result in substantial personal and corporate liability.
I help corporations and their managers avoid employment-related litigation by conducting management training on the prevention of unlawful harassment and discrimination in the workplace, and by counseling employers on their responsibilities under the discrimination laws. I have defended employers and their managers who have been sued by their employees. As a result, I spend even more time training and advising clients on how to create better workplaces, avoid litigation or at least put themselves in a strong position to defend against employment-related lawsuits.
Managers are Potentially Liable
An employer or company may be liable for discrimination if it knew or should have known of discrimination or harassment and failed to remedy it. Managers or supervisory employees of that company are potentially liable themselves. Damages for violating the anti-discrimination laws can be considerable and can include back pay, compensation for pain and suffering, attorneys’ fees and even punitive damages. That is why training managers about their responsibilities in maintaining a harassment-free workplace is so important.
"Every day, employers see how complex and potentially explosive employment practices matters can be," states Catherine Padalino, Chubb Specialty Insurance Employment Practices Liability Product Manager. "A glance at the day’s news frequently turns up stories about companies that followed improper employment procedures and wound up paying huge settlements from unfavorable case developments or verdicts."
As a manager of employees, if you witness any conduct that crosses the line between appropriate conduct and potentially unlawful harassment or discrimination, you must act even if the affected employee does not complain or even if the employee complains and asks you not to do anything. Any suspected instance or allegation of discrimination must be investigated. Get in touch with your Human Resources department immediately and do not try to conduct the investigation without their assistance. The HR department (or an outside investigator) should take prompt and thorough action, talking to the complaining individual and the accused harasser and initiating an investigation that may include discussion with witnesses. If you work at a small company that has no HR department, make sure that the company gets outside help from qualified employment counsel or investigators.
If the investigation reveals that unlawful harassment or discrimination may have occurred, managers and their employers must do whatever it takes to stop the misconduct and make certain it does not reoccur. Be sure that workplace conditions at your company do not create a hostile environment for anyone.
The Women Presidents’ Organization, of which I’m a member, claims that employer liability and determining appropriate insurance are two of the foremost issues employers face today. "The most frequently discussed and deliberated topics at chapter meetings are Human-Resources related," said Marsha Firestone, president and founder of the WPO. "Many women business owners don’t understand how the law effects their business, what type of legal support they need, and how to insure their businesses effectively."
Creating An Effective Anti-Discrimination System
An effective anti-discrimination system must include a variety of components. As a starting point, a formal policy prohibiting harassment in the workplace must be developed and published in an employee manual. The policy should be posted, given to new employees and periodically distributed to current employees. In addition, an employer must institute an effective complaint procedure which employees who are subject to harassing conduct may utilize. That process must include the prompt and thorough investigation of all complaints. Mandatory training on preventing unlawful harassment must also be given to all supervisors and non-supervisory employees.
An anti-discrimination system that evidences an employer’s unequivocal commitment to create a work environment free from unlawful harassment and that is equipped with mechanisms for an employee to report and obtain resolution of such behavior will afford the highest potential for protection against liability.
"EPL lawsuits constitute the most common type of liability lawsuit today", says Padalino "Once a claim gets rolling it is difficult to stop and can be financially devastating. The best thing companies can do is encourage sensitivity and informed decision-making through education of their directors, officers, and employees, particularly those in supervisory positions. Many insurance carriers provide purchasers of EPLI policies with loss prevention programs at no charge, and companies need to take advantage of these services. At Chubb Specialty Insurance we strongly encourage our customers to take advantage of our online resource which offers model employment policies, procedures and forms, as well as online training for managers and supervisors on sexual harassment, discrimination, and wrongful termination for no charge."
Unfortunately, the law does not mandate specific guidelines for how to handle delicate situations. The law requires that a manager/employer stop the unlawful conduct and make sure it never reoccurs. When you have employees who have stepped across the boundaries of what is acceptable, you must decide what corrective action will ensure that the boundaries are not crossed again. Some examples of effective discipline imposed upon the accused harasser include: giving a strict written warning and ultimatum that similar conduct will lead to additional discipline, sending the harasser to one-on-one sensitivity training, giving a written warning or suspension without pay, and even termination of employment. Most of the time, however, the situation is not so clear-cut because the complaining employee and the accused harasser have conflicting stories with no eyewitnesses. Often you find yourself dealing with shades of gray rather than black-and-white.
The key point is that everyone at your company must understand that discrimination will not be tolerated. Although there is no guaranteed formula, taking the above steps will put an employer in the best position to defend itself against such claims should they arise.
Katherin Nukk-Freeman is a founding Partner/Principal of Nukk-Freeman & Cerra, P.C. and a New Jersey member of the WPO. The firm devotes a majority oftheir practice to counseling and training clients on diverse employment issues pertaining to family and medical leaves, wage and hour requirements, COBRA compliance, discrimination laws, hiring and termination decisions, drug testing, and state and federal disability laws, and to defending them if they are sued by their employees.
Marsha Firestone, Ph.D., is president and founder of the Women Presidents’ Organization (WPO, a nonprofit membership organization for women presidents who have guided their businesses to generate at least $2 million in gross annual sales (or $1 million for a service-based business). Chubb Specialty Insurance is a National Sponsor of the WPO.
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