Sexual Harassment issue

KCHR · November 2004

We just received a notice of investigation of a sexual harassment claim from a former employee from our state HR department (Missouri). They have a laundry list of questions, how many EE's, what's your policy, etc. They are not asking for any written statements from any of the complainant's co-workers, just our written response to the allegation. Owner suggests the employees create written statements of their recollection of the situation. I'm wondering if a formal, taped question and answer session with myself and each employee would be more appropriate. What's your take on this?

Don D · November 2004

What is 'your state HR department'? Is that your equivalent of a state DOL? NO NO NO, don't ever go out on your own and construct something like that which is entirely more than they asked for and not what will serve you in the long run. If they want interviews, they will have interviews. You should always run these things by your labor attorney for specific guidance. He may not even want you to respond. In the absence of contacting your attorney, I suggest you only give them the numbers and state your response as 'The allegation is false and is denied by the respondent'. Let them fish if they want more. I don't know what you received in the way of 'her side of the story'.

KCHR · November 2004

Sorry, fellow posters, there will be no contacting of a labor attorney at this prelimary stage (absolutely final decision of owner at this point). If I had that luxury I wouldn't be on this board right now. Your point is well taken about doing "too much." I think I will respond point by point to the allegations and leave it at that. FYI: There was never any complaint from the ex-employee regarding the person who allegedly committed the harassment (who is no longer here as well), although she did complain excessively to her co-workers about not liking the individual in question and hating working with him (he was her co-supervisor). She had plenty of management avenues to explore to complain, including her other co-supervisor, me, and the owner, who she worked with extensively. However, she never brought any issues to any of us.

Whatever · November 2004

Tell your boss he is "penny wise and pound foolish." The consequences of a mis-step at this point are potentially enormous.

mwild31 · November 2004

Tell the owner, "You're going to lose and you're going to lose big." Let him/her know from us that it's incredibly dim-witted and completely irresponsible not to contact your attorney right now. An attorney will walk you through this process and help you determine what your steps are now and what they should be in the future. This "board" should not EVER take the place of a licensed attorney that specializes in employment law & by the way you're FYI proves that you need an attorney now more than you know. Do you folks even have a written policy on sexual harrassment? Have you ever conducted training on sexual harrassment - do employees sign off that they've been through the training? Do you keep up to date with current federal and state laws on sexual harrassment & update policies/procedures accordingly? You say that you know this employee used to complain - did you ever follow up on that when she worked there? Are there other complaints from other individuals about the employee accused of the sexual harrassment?

p.s. - Do you have EPLI insurance? If you do, you have to contact your attorney.

mushroomHR · November 2004

Definitely contact your labor attorney before responding; let them guide you through this. No way would I handle this on my own for fear of possibly doing or saying something I may regret later. If you back yourself into a corner on this, you may never get out.

marc · November 2004

Other than echo Don's response, I have more questions than answers. In order for the sexual harassment claim to have any traction, the claimant must prove that there was a significant negative impact on her employment, such as, no promotions, denial of salary increase and the like. Hostile work environment can come into play at some level, but none of this is apparent in your post. So from this perspective, too little information prevents us from doing much more than saying, contact your attorney.

You might be able to nip this in the bud with your approach, but without knowing why the claimant is now an ex-EE and the circumstances surrounding her dismissal, there is little else to be done.

Apparently, no investigation was done, so her compaints never made it to ANY LEVEL of management?

zen · November 2004

I agree with other posters that your administration needs to reconsider contacting a labor attorney. If however, they are resolute to not do so and you must proceed, do not give any information other than what is explicity requested. If you're sued, the complainant's attorney will subpoena whatever records you have that they feel will help their case. By giving information that has not been requested, you are complicating your own situation and making it easier on your opposing counsel. If you're asked what time it is, say it's 12:00 - don't tell 'em how to make the watch.

Rockie · November 2004

I assume what you are referring to as your "state Human Resources Department" is what we have here in South Carolina. It's called the State Human Affairs Commission. This agency was designed specifically for disgruntled employees to go to to lodge complaints against employers for any reason where they felt mistreated, etc. It doesn't cost the employee anything to file a claim and is the first step towards civil litigation (where they do have to pay an attorney). I hate to sound cynical as I am sure there are some legitimate complaints out there...but most of them that I've seen are frivilous and mostly the case of an employee who was just angry he or she was terminated and are grasping as straws for a reason. I've not ever lost on one of these cases, and I've had numerous ones.

What SHAC tries to do is get employers to settle during a mediation. A lot of employers will do this just to make it "go away". Send the wrong message to employees that you are an easy mark for any imagined slight to them.

I have done this both ways. Handled all the paperwork myself (and it is considerable) and takes a lot of time. In recent years as the workplace has even more litigious, I always engage the services of our labor attorney. I usually do the preliminary statement and all the initial paperwork and let him review it. As one poster put it, you have to be careful in everything you say nowdays.

Money spent to have an attorney review this paperwork is well worth the money.

Don D · November 2004

You didn't answer my first question. Now Rockie has asked it again. Who are you referring to as "Your state HR department"? Based now on your second post, I am willing to assume that you have never been involved in a full blown EEOC investigation or sexual harassment internal investigation. If I am correct (and even if I am not) then the advice that all of us have given, regarding an attorney, is critical unless your company owner has more money than good sense. If he knows anything at all about a cost-benefit analysis, whisper these figures in his ear: $350 dollars for a real good, initial labor attorney consultation compared to, say, just picking a number off the money tree, $200,000 (six zeros) to the complainant and her attorney that you risk pissing away if you try to wing it. x:-)

KCHR · November 2004

Thanks for all the feedback! I am dealing with the Missouri Commission on Human Rights, not the EEOC, thank goodness! As the poster from South Carolina mentioned, these guys don't cost a dime for the former 'EE and usually bring low-level cases up. Of course we have a sexual harassment policy, of course it is in writing and given to all employees during NEO to sign, and of course there are channels for complaints. Yes, we have training. Hell, I've done harassment training for fire fighters (not a willing audience), so I'm confident the training here is comprehensive. Yes, the supervisor was a jerk and an alcoholic to boot (the latter leading to his dismissal for intoxication on the job). No, the former 'EE never made any specific comment about a hostile work environment or being sexually harassed of any kind to any employee other than she thought he was a jerk and an alcoholic (turned out she was right). I met with her in private and asked her if she was having problems with her supervisor and instructred her to meet with her other supervisor or the Owner if she had any problems. She denied having any issues and never met with any member of management to express a complaint. Next week, she doesn't show up or call in for 3 days and is terminated for job abandonment. Whew! Hope that answers everybody's question.

mwild31 · November 2004

This information does help us to understand, but I still worry about the owner that doesn't want to hire an attorney. I think the advice above has been really good - only do what's been asked and complete the paperwork to the best of your ability (be careful not to write more than what's being asked). That being said, it sounds from your posts that you folks are looking for an affirmative defense, "hey, we have training & clear policies and the ee never talked to management, so how can it be our fault?" Here's the thing - an affirmative defense is a two-pronged defense. The other prong to it is this: did you (the company) exercise reasonable care to prevent & promptly correct any harassment? Did you know or should you have known that harassment was occurring & did you promptly & effectively stop the harassment? Granted, I know you can't write a book on this, but it sounds from you post as though you knew this fellow was harassing others, spoke with the woman in question, but nothing happened other than she didn't show up for work - maybe she was scared? I don't know, but you might lose this part of the "prong" and I think this is where an attorney can walk you through the questions & prepare you now for what you should write as your response. You really want this response to be top notch as it will become a matter of record & it could be used against you (the company) if this matter doesn't get cleared up at this level.

Sexual Harassment issue

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