An allegation of harassment in the workplace is a growing phenomenon facing companies across the U.S. The following is an article derived from a 2003 seminar I attended at the National Business Aviation Association {NBAA} Convention in Orlando, FL. The full name of the seminar was – Indecent Proposal in the Workplace – An Overview of Workplace Harassment & Employer Liability. The seminar was presented by Patricia Griffith and Ellen Ham of the Law Firm of Ford and Harrison in Atlanta.
True to its billing, attorneys Griffith and Ham gave real life examples of harassment issues companies are dealing with today. Griffith noted that juries are awarding large settlement sums against companies as juries perceive a certain amount of workplace arrogance being displayed by corporations. The attorneys defined workplace arrogance as a person who is in a position of authority over another person and abuses that authority. Because of the jury’s perception of company practices [namely indifference], they are inclined to award large verdicts against the defendants, that is, the companies.
While many people think that the asking of sexual favors is the primary reason for the harassment, sexual innuendos garner many more complaints. In 2002, the EEOC reported that sexual harassment complaints stayed level for the first time in three years. However, racial complaints – particularly those involving national origin – have doubled in the past ten years. Many complaints have been brought by Muslims who have perceived discrimination in the wake of the September 11th terrorist attacks on America.
Complaints of harassment are just as likely to be filed against co-workers as they are against supervisors. Interestingly, in the field of sexual misconduct, the definition of sexual harassment is much more clearly defined by determining what was consensual vs. what was currently not welcomed. Griffith stated, “…it is all based on what is currently unwelcome. Consent doesn’t matter. The consensual affair gone bad is what causes the problem.” In other words, the sexual liaison may have been okay all the way up to that point, when it is no longer okay then problems erupt.
Griffith illustrated her point by giving an example of two co-workers who had an affair gone bad. The company ran into trouble when seeking to correct the problem by transferring one of the employees to another department. Unfortunately, the transferred employee was a woman and she perceived discrimination; that is when the employee took action against the company. Juries, who ultimately decide cases, are increasingly likely to sense discrimination even if the intent was otherwise.
To protect themselves, Griffith noted that companies should do the following:
* Establish a comprehensive anti-harassment policy. Zero tolerance for sexual, racial, and disability practices.
* Set up a user friendly complaint system. Designate two people to report the problem to someone other than their supervisor.
* Employee orientation. When new employees begin their jobs, that is the best time for having them learn about the company's anti-harassment policy. Have the employee sign and date a release.
* Laminate and post your company's policy.
* Train your supervisors.
* Identify who is going to investigate the claim. It does not have to be with the same person who received the filed complaint.
* Prepare for your investigation. Review personnel files, attendance records, all paperwork, and identify all potential interviewees.
* Prepare an outline of key questions -- what will you do if someone refuses to testify?
* Investigate promptly -- do not wait. Juries want proof that you investigated the matter immediately.
* Investigate thoroughly. Everyone and anyone connected to the case must be interviewed.
* Provided interim relief -- don't leave the two people together.
* Take appropriate action.
* Communicate a decision: don't let the victim be in limbo.
* Document everything accurately.
The seminar was peppered with real life examples of harassment claims that caused the attendees to rethink how they might approach a particular situation. In addition, a ten question quiz was given to help us understand how harassment is viewed in the workplace today. Notably, many of those answers were subjective and were dependent on what action a company took before the case went to trial. Griffith and Ham effectively communicated to the Audience that a company's reputation and bottomline could suffer seriously if the aforementioned steps were not properly followed. Fortunately, it appeared that many of the attendees had learned some valuable lessons to bring back to their respective companies.
Tidbits:
There Are 3 Categories of Trouble for Companies:
A High Level of Management Action. Supervisory Action. Negligent Inaction.
All three situations are indefensible in court!
Consensual v. Welcome
Simply because a person consents to something does not mean that it is welcomed! Juries today are distinguishing between the two.
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