Claims can take a toll on an employer’s reputation, finances, culture and more — not to mention the effect on employees directly involved.
While the U.S. Equal Employment Opportunity Commission reported a drop in charges received last year, the more than 72,000 filed show that discrimination and harassment complaints are still very much a concern for employers.
And when such claims are made, they can take a toll on an employer’s reputation, finances, culture and more — not to mention the effect on employees directly involved. To prevent such damage, it’s important to prevent claims in the first place, according to employment law experts.
Reduce Risk Factors
Employers need to identify circumstances that could foster harassment or discrimination. That involves understanding how work gets done in the workplace and ensuring guidelines are in place.
Ask yourself: “Are there situations in which you have obvious risk factors?” Examples might include employees in a reporting relationship who are dating or married or managers who seem to assign projects subjectively. Without guidelines, those situations may lead to concerns about discrimination or harassment.
Specific guidelines may depend on the job and industry. If a job requires travel, what are the expectations? If the job is in the hospitality industry, are there guidelines on drinking on the job? In a position where employees receive tips, is there potential abuse in how those are distributed? By understanding what the job is and what is required to perform it, employers can create expectations that employees can use as a foundation.
Beyond addressing risk factors, employers should provide harassment prevention training, especially for new leaders. Training can help managers learn to provide constructive feedback, support and work with people from different demographics. Sometimes, without training, a manager can behave inappropriately, making an employee feel picked on or treated unfairly, even if not engaging in traditional harassment.
HR also must be up to date on the types of issues that can occur; micro-aggressions or harassment through text messages, for example, may not have been recognized 20 or 30 years ago, but are top of mind now.
Recognize Remote Issues
Even with many individuals now working from home, employees can cross boundaries. Just because we’re not in our offices doesn’t mean our obligation to take this seriously went away.
As a byproduct of working at home, employees share more of their personal lives — in ways that could be used against them. Employers previously could remain unaware of employees’ personal circumstances, but that can be difficult if an employee has to go off-camera to breastfeed.
Employers had to modify practices in a hurry, so in many areas, no policies exist to keep employees who work remotely from behaving too casually or not maintaining appropriate boundaries. Certain kinds of harassment continue to exist. If people are harassing by email or text message, [there’s] no reason to think it would stop because we are remote.
Address Complaints Thoroughly
If an employee feels wronged, they should have a reliable way to raise their issues to management.
Employees need to have a meaningful complaint and investigation that exists more than on paper; it must be a known and used process that resolves complaints. Many companies get it wrong in that initial glance that determines whether a complaint requires a more fulsome investigation, or they ignore indicators of a problem even before a formal complaint is lodged.
Sometimes an investigation of one issue will reveal others. This is counterintuitive to what investigators have been trained to do; we look at each [complaint] as an individual thing, but it’s really important to think about making connections between things that have been coming up.
Employers should thoroughly document the investigation. Issues can be raised years after the people who might be knowledgeable of the complaint have left the company. You’re going to need to be able to remember why you did what you did or what you didn’t do. Keep records of what people said, hold on to emails and text messages, and have proof that the company took action.
Those records can also help a company defend itself in court against a discrimination claim. When it comes to motive, and the employee claims discrimination and the manager doesn’t have documents, it’s harder to exclude the possibility that there has been an improper reason for an adverse employment action.
Because each case is different, the specific information needed for a legal defense will vary. While companies should show their due diligence once in court, it is critical to investigate and address issues before they make it there. Do people trust the process and trust that the process is going to resolve itself and that they won’t be penalized for having made a complaint? Companies must protect employees who complain in good faith from retaliation under the companies’ zero-tolerance policy.
Although employers should have a plan to address a complaint, they shouldn’t wait until a complaint is levied before taking action. Instead, they should aim to create a workplace culture where everyone focuses on doing the right thing.
Our team of professionals is available to help your organization develop a program to ensure your leaders are trained and aware what constitutes harassing behavior, and we will help you develop and implement a zero-tolerance policy.