What's The Problem?

For an employer, the problem is the decision by the United States Supreme Court in 1998, which said that in order to hold a company liable for the discriminatory or harassing actions of its supervisors, it is no longer the burden of the employee to prove that a company had knowledge of the bad acts of its supervisory staff. It is now the burden of the employer, to show that it did everything humanly possible to seek out, and prevent.

What This Means to Your Company

This new position means that if an employer fails to meet this burden, it ABSOLUTELY WILL BE HELD LIABLE FOR THE ACTS OF ITS SUPERVISORS ó WHETHER IT KNEW ABOUT THEM, OR NOT!

And that can mean serious consequences when that employee files a charge with the Equal Employment Opportunity Commission, (EEOC), the Pennsylvania Human Relations Commission (PHRC), the Philadelphia Commission on Human Relations (PCHR), or ultimately, with the federal court of the United States.

What You Can Do To Protect Your Company

  1. DOCUMENT YOUR POLICIESYour most important weapon in the fight to avoid litigation is a strong and comprehensive written policy on harassment and discrimination. Under the new law, you must be very specific about the mechanisms for reporting the actions, investigating the actions, and remedying the actions.

  2.  EDUCATE YOUR PEOPLESimply writing out a policy and sticking it into your Employee Handbook will not be enough under the new law. You must, pro-actively, educate your staff on the new policies and procedures.

  3. TRAIN YOUR PEOPLEOnce your people understand your policy, will they understand what harassment is? You must be certain that your employees can recognize actionable harassment and discrimination, and that they will know how to handle sensitive situations when they arise, before those situations turn into crises.

  4. MONITORMake sure you know what is going on in your company. Make sure you are setting the example for what behaviors will, and will not be tolerated by management.

Are All These Steps Really Necessary?

Like a pre-nuptial agreement, these precautions are only necessary if a problem develops. Unlike a pre-nuptial agreement, these precautions may prevent the problems altogether. In light of the Supreme Courtís 1998 decisions, these precautions are your ONLY possible defense in the event of a charge of harassment. Can your company do without them?

I Can Help

  1. POLICIES: I can create comprehensive, state-of-the-art harassment and discrimination policies for your company, or I can review your current policies to assure that they conform with the requirements of the new law.

  2. EDUCATION: I can conduct in-house classes for your employees to educate them about the procedures for using the new policies.

  3. TRAINING: I can conduct training sessions for your staff, to sensitize them to the issues of harassment and discrimination, and prepare them to deal with difficult situations as they arise in the workplace. Training sessions can run from one hour, to half-day, to full-day sessions, depending on the size of your staff.

  4. CONSULTING: Iím just a phone call away, whether you need instant advice on a critical situation, or general advice on a new policy consideration.

Can You Answer These Questions?

Who is the most appropriate person to designate as the one to whom acts of discrimination or harassment should be reported?

There is no right answer to this question, and there should not be just one person to whom employees can report incidents.

 

Who is the best person to conduct the investigation of the complaint? Should it be the department supervisor, the human resource manager, or the company attorney?

The company attorney may be the worst choice, as s/he may become a fact witness in the lawsuit, and be precluded from representing the company.

 

What is the proper punishment for an employee who is found to have harassed or discriminated against another employee? Should the harassed always be fired?

The company must make the punishment fit the crime, or it subjects itself to the possibility of a lawsuit from the harasser.

 

Who decides if a managerís behavior was harassment, or not? Is harassment always "in the eye of the beholder?"

The Supreme Court continues to struggle with definitions of harassment ó you need to know what the most current definitions are!

 

DISCLAIMER: This website is intended to give general information on a very complicated area of the law.  None of the information in this website is to be construed as legal advice; it is for informational purposes only.  No information provided in this website, or communications made over its affiliated e-mail address, is to be considered as having created an attorney-client relationship. The materials provided in this website provide summaries only.  Employment law cases are very fact-intensive and fact-sensitive.  An evaluation of an actual case requires an extensive discussion of the specific facts and a thorough evaluation based on those facts and the applicable law.