By Rachel Schaller
Dec. 10, 2013
Human resources managers are a business’ front line for employee complaints, which all too often involve discrimination or harassment claims. Training managers and the workforce on how to avoid complaints and effectively address those that do occur is critical. These five points will help employers avoid discriminatory harassment among employees.
1. Preventive Action. In 2014, HR managers know that employers need an anti-discrimination, anti-harassment and anti-retaliation policy. But creating a sound, comprehensive policy is just a necessary first step. Supporting and enforcing that policy is where the rubber meets the road. Therefore, ensuring HR managers are trained to support, communicate and enforce the policy is a vital second step. HR managers must be able to distinguish complaints that may have legal consequences from complaints that need professional attention but do not require escalation to legal counsel. Training, whether done internally or through an outside resource, can assist managers and supervisors in learning and acting on these distinctions.
2. Responding to a Complaint. An anti-harassment policy should provide a detailed explanation of the complaint procedures. HR managers, supervisors and employees all should be trained to understand the complaint process and the importance to the business and the employee of following the established complaint procedure. In particular, HR managers and other supervisors must take complaints seriously, be objective and fair towards all parties involved, and show concern. An especially sensitive area is learning how to respond when an employee does not want her name to be used in an investigation. Seasoned HR professionals are trained to assure the employee that the investigation will be confidential to the extent possible, but that complaints must be investigated. At the same time, they know how to let potential victims of harassment or discrimination that their jobs are safe from retaliation when they cooperate in an internal investigation.
3. Retaining Records. All complaints of harassment should be well-documented and preserved. Not only is retention of employment records required for certain time periods under the law, these records will be helpful if an employee files a charge of discrimination with the U.S. Equal Employment Opportunity Commission or an equivalent state agency. In today’s workplace, harassment can occur in emails or tweets, and, therefore, any potentially relevant electronic data as well as paper files must be preserved. HR managers can help train supervisors and employees to understand that deleting or destroying potentially relevant emails or documents can have serious legal consequences.
4. Distinguishing Between Workplace Bullying and Actionable Harassment. When does a conflict between employees rise to the level of harassment that violates anti-discrimination laws? If the harassment is based on the victim’s race, ethnicity, gender, religion or other protected category, it might be illegal as well as inappropriate. On the other hand, employee conflict, bullying or intimidation based on other characteristics such as personality traits may hinder workplace productivity that requires prompt professional attention but not legal input. There can be a fine line here, so training can teach supervisors and employees that what seem to be innocent comments concerning issues such as clothing or hair style, could lead to a claim of unlawful discrimination or harassment. As mentioned before, well-trained HR Managers can separate workplace issues that can be resolved through professional concern and discretion from those that may require legal input.
5. Addressing Electronic Information and Social Media. HR managers can help employees understand that company computers and mobile devices are company property, and that employees have no reason to believe that any information on any such computer or device will remain private, including posts on social media on company-owned computers. However, before taking any action based on an employee’s posting on social media, consult with legal counsel, as this is a rapidly developing area of law.
Cary Donham, Rachel Schaller and Richard Hu are attorneys with the employment law group at Shefsky & Froelich in Chicago. To comment, email email@example.com. Follow Workforce on Twitter at @workforcenews.
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