So, you have made it through January. If you are anything like me, and are living in the Northeast, you are dreaming of Spring, or at least a few weeks without buckets of snow being dumped on the existing giant snow piles. You have probably long ago forgot about all of those New Year’s resolutions you made, including the personal ones like go to the gym and eat healthy and those work resolutions — have more productive employees and cut costs.
While it is a good idea to dust off those gym shoes that have not been used since January 2nd when you returned from the gym with every muscle screaming from your newly resolved workout routine, it is also a good idea to dust off those work resolutions. As was noted in one of last week’s posts, the EEOC is reporting that discrimination claims have risen to an all-time high. In addition to those formal complaints, there are countless formal and informal internal complaints of discrimination and harassment that employees make with their employers every year. How you address those complaints directly impacts your work resolutions to have more productive employees and to cut costs.
It is no secret that employees who feel they are being harassed or discriminated against are not productive employees. In fact, employers may see a pattern of lateness or absences when an employee feels harassed and is trying to avoid the alleged harasser. It is also no secret that some of the largest costs that an employer can incur are litigation costs. As we have noted, claims of discrimination can cost employers hundreds of thousands of dollars in damages, not to mention the legal fees also incurred. These costs are, unlike payroll, raw materials, and other operational costs, unbudgeted, which make them particularly difficult to deal with as employers.
One of the best ways to avoid these costs, is to timely and effectively respond to complaints of harassment and discrimination. This is true, not only because it may stop the loss of productivity from individual employees, but also because an employer who does so may have an affirmative defense against a claim of harassment or discrimination. An employer may have an affirmative defense to such a claim, even when the harassment is committed by a supervisor, if it can demonstrate that (1) "the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior," and (2) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." This defense has become known as the Faragher/Ellerth defense based upon the two United States Supreme Court cases in which it was established.
The first step in proving the first part of the Faragher/Ellerth test is to establish that there is a policy prohibiting harassment and discrimination. Although every employer’s policy may differ in some respects, the Second Circuit has noted that an effective policy is one that has a complaint procedure, specifies that complaints will be investigated, prohibits retaliation, and disciplines managers who fail to promptly address and/or investigate complaints of discrimination.
So, what to do to get back on track with your resolutions? Grab an apple and sit down and review your existing handbooks and policies to insure that you have a detailed anti-harassment and anti-discrimination policy. When in doubt, consult with legal counsel to insure the policy is legally sufficient.