Harassment or Discrimination Claim? Your Response Matters

on May 14, 2019

Sandy Zannino, our good friend over at Innovative Auto HR stopped by this week to remind us that first responses can often set the tone for events going forward. Here’s some great advice for you:

You come into work, ready to slay the day!  Your mood is bright, your smile sunny and you have a positive outlook on the day.  Maybe you are a list maker, and you are happily crossing ToDo items off of said list.  Then it happens.  Cue that fun movie music – dun du dunnnn – can you hear it?  An employee comes to you and says something like, “I don’t want anyone to get in trouble…..BUT…._______ is happening and it is really bothering me”.

If you are a manager, chances are, this has happened to you.

If it hasn’t yet, be assured that one day, it probably will.  How do you respond?  What do you say?  How do you react?  The first thing to do is to take a deep breath and remind yourself not to make any judgements about what the employee has related to you.  Do not let the desire to go back to your productive day and just make this go away take over your response.  Do not make a decision about whether the behaviors causing the employee to come to you are actually illegal harassment and/or discrimination.  And know that your next words to this employee are super important.  There are a lot of things to NOT say and I’ll give you a short list at the end of this article.  For now, I’m going to give all you lucky readers a short script for when someone comes to you with any kind of complaint.

Start with something like this,

“Thank you for bringing this to our attention.  The company takes these things very seriously and it is important to us that our dealership operate in a professional manner as it says in our handbook”.  Then, assure the employee that you will keep this conversation as confidential as possible and only those key people who need to know will be involved, and that you are obligated to follow the company policies and procedures (which hopefully directs you to HR).  Let them know that they have done the right thing by coming to you.  Then follow your company’s complaint procedure.  (Note:  it is always my advice that every complaint begin an investigation—at the least an informal one to determine if an in depth investigation is warranted.  When in doubt, call your labor attorney.)

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Do not Retaliate.  I repeat….Do Not Retaliate in any way, shape, or form.

And don’t allow any of your managers to retaliate.  This is really important. The EEOC recently released Enforcement and Litigation Data for the fiscal year 2018.  Interestingly, retaliation charges topped the list with 51.6% of all charges filed.  I repeat, retaliation TOPPED the list.

Every January, I attend my local HR Association’s “legal update” and for the past few years, the labor attorneys that deliver the session have made note of the increase in retaliation claims.  It’s a trend and not a good one for employers.  We need to pay attention to this and educate our managers in how to respond to a complaint and what it actually means to retaliate.

Retaliation Defined

According to the an EEOC article from 2015, “A manager may not fire, demote, harass or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.”

“Fire” and “demote” are pretty clear right?  “Harass or otherwise retaliate” can be a little more murky.  Retaliation can come in various forms—some we wouldn’t think of immediately.  Sometimes it might mean a manager neglecting to redirect other employees’ less than professional behavior toward someone who has filed a claim against another perhaps well liked employee.

Could you imagine how this might happen?  There is an employee who jokes around with everyone, sometimes his jokes aren’t quite professional, but no one cares and “everyone” laughs and jokes back.  Until someone does care and files a complaint.  Of course during an investigation we make every effort to respect and keep confidentiality—we all know how that goes—and word gets back to the department and suddenly the complaining employee is facing a work environment where no one will speak to them, or even worse, is openly ostracized—creating an intolerable workplace.  It is the employer’s responsibility to redirect this behavior.

I could come up with lots of scenarios.  Maybe you could too?

Intellect over Emotion

What is important is that we make a serious effort to put our intellect over our emotion.  To be the accused in an investigation has got to be an emotion fraught position to be in.  And let’s face it, human nature will sometimes want to hit back—get even—show them.  He said/she said conversations start—gossip—it can get ugly.  Avoiding knee jerk reactions is paramount in these situations and if you have a manager who has been accused of some type of harassment or discrimination, it is very important that they understand that any type of retaliatory behavior is to be completely avoided.

If there is ever some type of investigation happening in your organization here are some things to remember:

  • Do not talk about the investigation or allegations
  • Pay attention to what is happening in the dealership and the department
  • Do not start scrutinizing work or giving the complaining employee a hard time
  • Do not make threats
  • Do not treat the complaining employee differently or angrily
  • Do not demote
  • Do not lower hours or unfairly distribute workload
  • Do NOT choose NOW to discipline (yet another reason for addressing performance when it happens, not later)—if you address it now, it will look retaliatory.
  • Do not engage in gossip and do not tolerate it on your team

When we can take a breath and think rationally and like the adults we are, then perhaps we can put intellect over the emotion and significantly lower the risk for an added claim of retaliation.

Dig Deep

 We also might do well to put ourselves in the complaining employee’s shoes and dig deep to find that accountability we are always talking about.  Regardless of what you might think, MOST people who experience harassment and/or discrimination do not come forward.  I’m not saying that there aren’t people out there who make false allegations, hoping for a quick pay day and looking for deep pockets.  These kinds of people have always been around and always will be around.  What I am saying is that IF someone comes forward, they AND the accused should be given the “benefit of the doubt” as the saying goes and the internal investigation should begin immediately.  Because IF the complaint is valid and if illegal harassment and/or discrimination has taken place—it has taken significant courage for this employee to come forward.  Most don’t.  Why?  Because they fear retaliation in some way or form.  Are they right?  Will they face some type of retaliation?  Maybe the latest statistics give us the answer.

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