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Five dangers in dealing with harassment claims

As with firing, the rules for handling sexual harassment claims are well known, yet employers still make mistakes, says management consultant Joseph Godwin of F&H Solutions Group in Asheville, NC. Here are five areas that warrant attention.

1. No, it’s not sour grapes

Don’t dismiss any complaint, particularly one from a fired or demoted employee, as sour grapes or a lame attempt at revenge. Many an employer does that and doesn’t investigate properly.

But think it through. Did the office hired a disgruntled employee or did it make the employee that way?

There are indeed times “when the motive is getting even,” Godwin says. But in his own experience investigating claims, he finds that when somebody makes a complaint, invariably “there’s something to it.”

2. There has to be a decision

Always come to a conclusion.

Not unknown is the scenario where the employer takes the victim’s complaint to the accused, the accused denies it, and the matter becomes a he-said/she-said situation that never gets settled.

The employer’s job “is to address it and resolve it,” Godwin says. Don’t expect to be able to determine guilt beyond all reasonable doubt. Use a lesser standard of credibility, but make a decision one way or the other based on the facts.

In most cases, the decision will be in terms of “it looks like we did (or didn’t) have an incident here.”

And if the finding is in the negative, tell the accuser “we talked to So-and-So. He did not behave properly, and he’s sorry and we’re sorry. But what happened really isn’t harassment.”

3. Yes, suspicion counts

Watch out for retaliation. It can occur even when a complaint is found to be meritless. And it doesn’t have to be intentional or even real; the mere appearance of it is enough to cause problems.

In one case, four employees requested time off to take a vacation trip together and were granted it. Then in walks a fifth employee asking for leave to join them and the request was denied. And it just happened that the fifth employee had earlier filed a complaint of harassment.

The reason for the denial was valid – allowing the leave would have left the office short-handed. But the supervisor didn’t explain that, and that allowed for the perception that the denial was retaliatory.

Be careful with anyone who has filed an EEOC complaint, Godwin says. Explain any action that adversely affects that person so there can be no suspicion of retaliation.

And another caution: don’t mention the earlier complaint or say the action is not retaliatory. Doing so raises the question of “why is this getting mentioned?” and the wheels of suspicion start to turn.

4. Size really doesn’t matter

Don’t think a small office is immune to sexual harassment claims. True, Title VII of the Civil Right Act applies only to employers with 15 or more employees, but other employees “still have weapons.”

There are state and local laws, and some allow claims against employers with only six employees.

Other actions can also be brought.

If there is unwelcome physical contact, there can be assault charges. Godwin cites one case where a federal court upheld an employee’s suit for sexual harassment and battery after her supervisor grabbed her buttocks and told her he wanted to have sex with her in the back room.

There can also be tort claims, and unlike discrimination complaints, those carry money damages.

If there’s fear of injury, there can be a claim of emotional distress. Or, if the harasser restricts the movement of the employee while making sexual advances, there can be a claim of false imprisonment.

And along with the legal issues is the bad publicity that can follow, he says. Picture the employee appearing on local TV saying “I’m getting sexually harassed at Practice X, and they won’t do anything about it.”

5. Bare bones aren’t enough

Have a comprehensive complaint procedure.

“Bare bones procedures don’t work.” If the EEOC comes to call, the manager needs to be able to say “this is our procedure, and this is what we did.”

It’s not enough for the procedure to say simply “bring all complaints to management.” It needs to give the title of the person who handles complaints.

In one case, a policy only designated management as the contact, and an employee reported a complaint to the benefits manager. The complaint did not get properly investigated, the employee filed a claim, and the employer responded that “the benefits manager wasn’t really a manager, so the employee didn’t really report it.”

That argument didn’t go over well. The court said that in the employee’s eyes, the benefits manager was management.

The complaint procedure also needs to name more than one contact person lest the first person be the harasser.

And it needs to say whether complaints have to be in writing and if so, what they should include – what happened, when, the name of the harasser, and the names of witnesses.

The safest approach is to require that it all be in writing, he says.

That doesn’t relieve the office from investigating verbal complaints. But it’s a good provision to include, because having the facts in writing eliminates the situation where a witness’s account is different from the account the accuser gave, and the accuser responds with “I didn’t say that. I said something else.”

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