Consistency is key. Employers should implement uniform and consistent policies and practices. When considering whether or not to discipline an employee, the employer should be mindful of its written policies regarding discipline and review the handling of prior similar issues to ensure that the employer is being consistent or, if not, that the circumstances (not an employee’s protected class status) justify a different result.
Consistent documentation is also key. Sporadic documentation can be a red-herring; however, consistent documentation of personnel matters on all employees can be very helpful to justify corrective or disciplinary action and, ultimately, if necessary, to defend an employment dispute. It is recommended that the documentation be shared with the employee at the time and maintained in the employee’s personnel file.
Training management regarding the consistent implementation of the employer’s policies and practices is also critical. For example, if a manager terminates John Doe because he had five tardies in violation of the company’s policy, why didn’t the manager terminate Jane Doe when she was tardy six times during the same time period? If a charge of discrimination follows, you can expect that the issue of whether or not management has been properly trained on the consistent implementation of its policies will be reviewed and addressed.
Candid and honest performance evaluations can also be helpful “prevention” tools. Again, consistency and honesty is critical. If you consistently document performance is “meeting or exceeding expectations” for a subpar employee and then terminate the employee for “poor or unsatisfactory” performance, you need to be aware that this causes inconsistencies in the defense of a subsequent claim. On the other hand, if you accurately and consistently identify weaknesses, then the performance appraisals can assist in both the prevention and defense of any subsequent claim or charge of discrimination.
An Employment Handbook can be an important tool to prevent claims as well. It should be provided to the employee and the employee should be required to sign an acknowledgement that he or she has read and understands the terms of the handbook. Policies can address topics such as: Leave; Compensation (overtime pay, bonuses, benefits); Performance evaluations; Discipline; and Grievance Procedures.
Most importantly, the “Faragher/Ellerth” affirmative defense is available to employers defending harassment/hostile work environment cases where there has been no tangible employment action (no termination, demotion, suspension, etc.) taken against the employee. To take advantage of the “Faragher/Ellerth” defense, the employer must be able to demonstrate: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
When defending a claim, employer policies, training programs, and the company’s investigative processes will all be considered and evaluated to determine whether there were sufficient preventative or corrective opportunities provided to the employees.
So, employers should develop and implement clear written policies specifically addressing discrimination, harassment and retaliation. Each of these policies should, at a minimum, include the following components: (1) a statement that harassment and discrimination in the workplace is unlawful; (2) a statement that it is unlawful to retaliate against an employee for filing a complaint or for cooperating in an investigation of a complaint; (3) a description and examples of the unlawful conduct; (4) a statement of the potential consequences for employees who engage in the proscribed conduct; and, (5) a description of the process for filing internal complaints, including the contact information for those persons to whom complaints should be made.
The company’s policies prohibiting discrimination, harassment, and retaliation must include a detailed “reporting” or complaint procedure. The policy should specifically provide a mechanism for bypassing a harassing supervisor or other member of management. An employee should never be required to report the conduct to the alleged wrongdoer. Reporting options often include: a direct supervisor; Human Resources; any member of management; President or other officer of the company; or in-house counsel.
All employees should be trained to immediately report any complaint or knowledge of inappropriate behavior (harassment, discrimination or retaliation) to one of the designated persons.
Finally, upon knowledge of a complaint, the employer should conduct a prompt and thorough investigation. The investigator should promptly inform the complainant and the alleged wrongdoer that the company: (1) will conduct a prompt neutral investigation; and (2) will not tolerate any form of retaliation. The employer should demonstrate that it is committed to requiring compliance with the employer’s written policies.
Implementing and following these employer best practices increases the chances that the complaint or concern can be resolved within the company and, if not, will only help support the defense of subsequent litigation.