Want to become one of the EEOC’s statistics? Didn’t think so…
We’re not afraid to say it… Yes – we are trying to scare the bejesus out of you. Discrimination and harassment in the workplace is a serious issue. Just how much can ignorance cost you? Here are some stats:
- In 2011 alone, 99,000 employee v. employer claims were filed with the EEOC – and a whole lot more were filed in court
- Workplace discrimination and harassment claims have increased 32% in the last five years
- Fifty percent of all employment claim verdicts between 2003 and 2009 ranged from $250,000 to upwards of $1,000,000.
By law, employers are required to protect their employees from unlawful discrimination, harassment, retaliation and other workplace issues. The failure to do so can take a serious toll – the cost in attorneys’ fees, damage awards, bad publicity, court time, and morale issues can be monumental.
That’s the bad news. The good news is that there is a tried and true approach that can minimize your exposure to these claims.
1. Do a “Legal Audit”
You can’t fix a problem unless you know you have a problem. A “legal audit” reviews your policies, procedures, history and other key factors for the purpose of finding out where you’re vulnerable to attack, and what you can do about it. It’s like a physical for your business.
2. Effective Policies
You already know this: you must implement legally-compliant policies designed to prevent unlawful workplace discrimination and harassment. But you may not know this: just having those policies in place is not enough – it doesn’t even come close. In 1998, the Supreme Court changed the law, and ruled that if a supervisor harasses an employee in a way that affects the employee’s job, the employer is liable. Period. There are no defenses. The employer pays. A solid policy will protect an employer against many potential liabilities, but in this kind of situation, words on paper are not enough.
Sound pretty hopeless? There is hope: training. The idea is to stop supervisor misconduct before it starts, and the right kind of training does just that. But training is not just a good idea – effectively, it’s a legal requirement. Courts routinely hammer employers who let their executives, managers or supervisors manage employees in ignorance, without detailed knowledge of employee rights. If a company disrespects employee rights to the extent that it is willing to turn its supervisory personnel loose without having first trained them, and if out of ignorance of the law a supervisor violates an employee’s rights, there will be hell to pay.
4. A Complaint Procedure
So by this point, you’re thinking, “Ok so I’ve got policies and I’ve trained my people… Should be sufficient right?” The reality is that no matter how well-prepared you may be, there’s still a risk that employees will have discrimination and harassment complaints. Stuff happens. And because stuff happens, all employers must have a clearly expressed, well-publicized, legally-compliant complaint procedure in place.
Here’s why: If you’ve got the right kind of complaint procedure in effect, and if an employee who claims to have been harassed or discriminated against doesn’t use it, you can often defeat that employee’s claim on that basis alone. Your argument is that if the employee had used the complaint procedure you could have nipped the issue in the bud, and the employee can’t be heard to complain if he or she failed to give you that opportunity. There are some other prerequisites and you’ll need to get some advice to make sure you handle this the right way. But a properly drafted and utilized complaint procedure can be life-saver.
Once you receive a complaint, you must handle it according to certain legal protocols. Courts will punish employers who become aware of a discrimination or harassment complaint, and don’t deal with it as the law mandates. Basically, you must immediately separate the complaining employee from the supervisor or co-worker who is claimed to be the source of the problem, you must make sure you handle the situation so that neither side is prejudiced until a final conclusion is reached, and you must investigate, and document the investigation, in accordance with legal requirements. This isn’t easy, and the best practice is to get counsel, and to utilize a neutral, outside expert who is trained in the art of workplace investigations.
One last thing: it’s not enough to do the right thing; you need to be able to prove you did the right thing. This requires documentation – more specifically, the right kind of documentation, the kind that can be used in court should the situation head in that direction. There’s nothing more frustrating than doing the right thing, and not being able to prove it – you’ll need some legal guidance to set up a workable, practical documentation strategy that will protect you.
To reiterate… As in so many things, an ounce of prevention is worth a pound of cure. Preventative legal medicine really works, and is one of the best investments you can make in the future of your business – especially when compared with the risks and costs of the alternatives. Protect yourself. Don’t become an EEOC statistic.