Thursday, August 18, 2011

How to Deal with "Stale" Complaints of Harassment/Discrimination

In trying to stay current on employment issues, I belong or subscribe to a number of organizations, networking groups, forums, etc. In one of those networking group discussions, the question recently posed was how to deal with "stale" claims of harassment and/or discrimination.

The specific situation at issue involved an employer that apparently had dealt with a spate of claims from former employees that were anywhere from 12-24 months old. The question then was whether the employer could "spend less resources" investigating such claims. The response from colleague Nancy Richards-Stower in New Hampshire was quite good, and applicable here in California. She suggested that investigation of "stale" claims should be no different from more current ones, noting that "showing good faith and an interest in investigating fresh complaints is a best practice."

Ms. Richards-Stower then suggested circulating a memo to employees to remind them that concerns about violations of Company anti-harassment and anti-discrimination policies require employees to report their concerns right away to a designated person (usually someone in the Human Resources office). Such a memo should also highlight that the Company's ability to respond promptly to concerns is dependent upon timely reports.

This "stale claims" memo should also include a reminder that the Company's anti-retaliation policies forbid anyone retaliating against employees for reporting harassment or discrimination experienced by the employee directly, or by others. (If an employer's personnel manual doesn't include such language, it should.) In the event of future litigation, such a reminder to employees of company policies could serve as evidence of the employer's good faith in responding to harassment and discrimination complaints.

Covered employers have the obligation to investigate all claims of harassment and discrimination under California law, and the fact that some claims are "old" or "stale" does not diminish the employer's duty to investigate. From an employer's perspective, it is best to fully document the investigation efforts, and a memo such as the one suggested above further serves that purpose.

This discussion leads to a further point that I have made repeatedly in the past; a "best practice" (whether as an employee or employer) is to document as much as possible.

If an employee is harassed, documented evidence of such harassment in the form of emails, memos, diary entries or other tangible media, are far more persuasive to a jury than simple "he said/she said" testimony. Similarly, employers defending against such claims are far more likely to sway a jury if they can show that they made tangible (read "documented") efforts to limit harassment and discrimination, or to respond effectively to such claims when they arise. Employers and employees both benefit by clearly stated and documented policies. Thus, employers are encouraged to routinely circulate memos reiterating established policies, to foster employee understanding of those policies. Employees benefit from having clear ideas of what will or will not be tolerated in the workplace.

I've found that many potential employee issues can be avoided by "managing expectations" and regular communication with employees helps significantly in that regard. In the end, we all benefit from harassment and discrimination free work environments, and these efforts move us all toward that goal.