Discrimination and harassment complaints are costly to both employers and employees. An employer charged with discrimination or harassment is likely to spend thousands of dollars investigating and/or defending such a claim whether or not it has merit. As the workplace use of the internet and e-mail increases, so does the likelihood of introduction of potentially offensive and objectionable material into the workplace. Sometimes, conduct that one person finds acceptable may be objectionable to another. As such, complaints often result with respect to conduct the actor did not believe would be objectionable.
Jury awards in discrimination and harassment cases can be enormous. For example, in Compres v. GCC Drum, Inc., Case # 99 C 6564, a Chicago jury awarded $4,000,000 in damages in a racial harassment case where the employer failed to implement an effective anti-harassment policy. A New Jersey court in the case of Doe v. XYC Corp., recently held an employer liable for failing to prevent its employee from using its computers to disseminate pornographic material over the internet.
Not only are discrimination and harassment allegations costly in terms of legal fees, they can be equally costly as a result of lost productivity stemming from diverted resources and poor morale. When an allegation is made, an employer must also spend time and devote otherwise productive resources to investigate allegations, interview witnesses and prepare reports. The employee-victim and his/her witnesses suffer significant emotional turmoil as well. In addition, such allegations or complaints affect the overall morale of other employees, even those not directly affected by it. The investigation itself can also become a distraction as employees discuss, speculate and take sides. Ensuing morale problems lead to lower productivity and heightened stress levels in the workplace. It typically takes several months or years to restore order, leadership and morale in the workplace. The costs and inconveniences of dealing with even a single complaint are immense.
Prevention of objectionable conduct and ensuing complaints is far less expensive. It is thus critical for each small business to develop a detailed anti-discrimination and harassment policy. It is particularly important that supervisors and managers be given adequate training on how to handle situations that can turn into a liability for an employer. The courts often hold companies responsible for the actions of their supervisors and managers, who often do not have the training necessary to protect the company’s interests. Supervisors and managers who observe such actions and do not take appropriate steps can cause the courts to determine that the company did not take reasonable action to prevent or correct the situation.
Liability may also extend to even those businesses that already have handbooks. Sometimes, handbooks identify certain individuals as being designated recipients of harassment complaints by title. However, the individuals identified may not be aware of their responsibility or how to handle complaints. They may also not understand the law or how to conduct and document an investigation competently. As handbooks become outdated and new policies circulated, the reporting mechanism can become confused and in conflict. Employers need to ensure that the policy is clear to all especially those charged with enforcing it.
Because most written policies and handbooks are generally not read by employees, it is important that employees, supervisors and managers be given hands-on training. The training should cover topics such as discrimination laws, identifying conduct that may be perceived as offensive, reporting procedures, and non-retaliation against complaining employees. Such training should also detail a zero-tolerance policy for violations. Because employers can be held directly liable for damages resulting from the conduct of their supervisors and managers, it is worthwhile to pay particular attention to their education in this regard. A strong and consistently enforced policy, when combined with appropriate education and training, reduces an employer’s overall cost of workplace management by reducing or eliminating harassment and ensuing complaints.
For a pre-determined fee, our law firm will draft anti-discrimination/harassment policies, conduct training and/or seminars for all employees including a special seminar for managers and supervisors. Such training may be done individually or in groups. We can also conduct the training at a location that suits the employer and employees or at the employer’s work site.