This Wisdom of the Crowd, compiled from questions and responses posted on the Small Law Department and Employment & Labor Law eGroups*, assesses an employer's response to harassment allegations in the workplace.
*(Permission was received from the ACC members quoted below prior to publishing their eGroup comments in this Wisdom of the Crowd resource.)
Question:
Employee A filed formal complaints against Employees B and C for unrelated issues at the end of last week. The complaints against B are lengthy and currently being looked into by HR. They include repeated instances of harassment/unfair treatment, incivility, discrimination, etc. The complaint against C was straightforward-A felt C used threatening and/or harassing language directed towards A on one occasion. HR spoke with C this morning and he admitted losing his temper and yelling at A and offered to apologize. HR felt C was sincere and said the apology (coupled with the reminder to watch his behavior and control his emotions) would be a reasonable resolution given that C has no history of anger (or any other) issues.
When HR spoke to A to tell her of the resolution, she became extremely upset and indicated that she would never accept an apology from C, she did not want to come to work anymore, she feels physically threatened by C, and will not meet with C. HR believes her reaction and her fears of being physically threatened are unreasonable. Knowing the parties involved, I agree. HR called me for advice, but I am not sure the best way to handle this without clouding the investigation regarding the issues between A and B, nor do I know the best way to resolve the situation with C. I agreed with the recommendation of the apology and reminder from HR. A has made several comments over the years about the number of lawyers she knows, so I am pretty sure if these situations are not resolved to her satisfaction, we will be sued. Since I have no confidence in what A would consider acceptable, my concern now is to make sure our actions were reasonable and defensible. Any suggestions?
Wisdom of the Crowd:
Response #1: Based on Your Description: 1) Employee C's behavior was unacceptable under company policy. 2) Employee C has been advised of such and presumably is on notice that should the behavior recur his/her continued employment is in jeopardy. 3) The Company has made the judgment that Employee C's behavior was a one-off that is unlikely to recur. 4) Employee A has been advised of the Company's investigation and conclusions and disagrees with the remedy (and Employer's determination).
The Company is under no obligation to change its conclusions; however, it can change the remedies. If Employee A would not welcome an apology, Employee C should not apologize and instead should be reminded to keep things professional.
The Company should not change the administration of its policies simply because Employee A is litigious, but should check itself for bias. Changing policy administration for fear of litigation is a no-win situation. It encourages the litigious to complain more (it worked the last time!) and leads to uneven policy administration (blurring policy lines and making it harder to defend any one particular action). That said, you should consider what the allegation might be - disparate treatment? If Employee C had lashed out at any other employee (other than Employee A), would Employee C be history? If so, challenge yourself as to why the disparate treatment is justified in this instance (i.e., to make sure it is not based on biases related to a protected classification). If it is based on legitimate distinctions be sure to document that. Of course, if you find bias, reconsider!
The Company should take extra care not to retaliate against Employee A; instead be empathetic, firm and let the solutions come from Employee A. Employee A is starting to feel like a "pain in the neck" but Employee A must not be ignored or treated poorly just because of the complaints. As a general rule, people sue when they feel they are ignored. So listen and empathize while remaining firm in your position. And as part of that listening, ask Employee A for his/her suggestions on how "we" can move on from this particular incident. While you will not be terminating Employee C's employment, perhaps there is something that Employee A suggests that you can provide that will defuse this particular situation.
If Employee A suggests that he/she just can't come to work in a place where Employee C is present, consider whether you are open to allowing Employee A to leave with a little severance and a release. If so, and Employee A suggests it (a company suggestion might look like retaliation), this might be a win-win.1
Response #2: These final exam like situations are always fun. At the end of the day the law requires that you take prompt remedial measures that are designed to be effective at ending the conduct in question, not that you take the remedial action the complainant desires. Certainly an objective review of the action being taken should be undertaken from the complainant's perspective, but if after doing so you are comfortable that your remedial actions will end the conduct in question and pass this objective review (which your actions appear to do), then I would move forward with your plan. How the remedial measures are communicated will be important as will some continued monitoring to make sure your remedial actions do end the conduct and no retaliation occurs.2
Response #3: I'm not sure if I missed this: has somebody asked A what she thinks should be done to address her complaint? Even if you expect her to be unreasonable, you won't be able to prove that her request is unreasonable until you get it from her. It's possible that she may surprise you and give you a viable option too. In any event, I would definitely get her proposed resolution and document it.3
Response #4: The complaining employee does not get to determine what the solution is and in many cases does not even get to know what the discipline is for the other party. The employer took her complaint seriously, investigated it, and responded. While the dual complaint process might indicate a higher chance of a claim, if you have done your work and investigated and documented properly, you can shut that down. Empowering an employee to determine or feel she can determine the outcome-when invariably it will result in the employer telling her no, we can't do that-will most certainly result in lower morale and likely actually increase the probability of a claim.4
Response #5: There is likely nothing that you can do to make A happy with the work situation again without some outside intervention. I recommend using an outside consultant with psychology/industrial relations background to try to figure out the best way to untangle all this and minimize risk to the company.
Everyone has some point where they get fed up and loose their temper at work. Most people get over it with an apology because they want to keep working. A should not get to dictate who gets to work with her/him and the conditions of the work. I suspect that if you looked closer at A, you'll find red flags about A's work performance, past complaints and grievances against others, and issues around "getting along" with co-workers. A likely needs performance managing too.5
1 Response from: Michelle Goldstein (Employment & Labor Law eGroup, Oct. 8, 2013)
2 Response from: Michael Martinez, Labor Employment Law Director, Lennox International Inc., Richardson, Texas (Employment & Labor Law eGroup, Oct. 8, 2013)
3 Response from: Talar Herculian Coursey, General Counsel, Vista Ford Lincoln, Woodland Hills, California (Small Law Department eGroup, Oct. 09, 2013)
4 Response from: Christopher Nichols, General Counsel, Aventine Renewable Energy, Pekin, Illinois (Small Law Department eGroup, Oct. 10, 2013)