Thursday, October 23, 2014

“He liked breasts” is never an appropriate response to a harassment complaint

Ruby Blackmon claimed that for a ten-month period, her second-level manager inappropriately stared at her breasts three to 10 times per day, would sexually rub her back, and would breath on her back and ear. Blackmon made ten different complaints to an HR manager, an administrative manager, and her immediate supervisor, all of which were ignored, except for one occasion when her immediate supervisor simply told her that the alleged harasser “liked breasts.” To make matters worse, on the heels of one complaint, her immediate supervisor gave her a negative evaluation. She filed suit after her termination.

Surprisingly, the district court granted this employer’s motion for summary judgment. Not surprisingly, the 6th Circuit reversed in Blackmon v. Eaton Corp. (10/16/14), concluding that genuine issues of material fact exists on the objectively hostile nature of the work environment and on whether there existed a causal nexus between Blackmon’s complaints and her termination.

We know that “He liked breasts” is an inappropriate response to a harassment complaint. What is an appropriate response? Here are 10 steps to follow if you receive a harassment complaint from an employee.

  1. If you are not the person in your organization trained to address and investigation these situations, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you. One word of caution. If you hire an attorney to do the investigation, do not make the mistake of assuming that the investigation will be privileged. It likely won’t be, meaning that the lawyer conducting the investigation might not be able to represent your company in any subsequent lawsuit.
  2. Separate the complaining employee from the accused harasser. If that means you need to send someone home, with pay, while you complete the investigation, so be it. Better you eat a few days pay than risk the accused making matters worse by harassing again.
  3. As soon as possible, interview the complaining employee (or, if someone else made the complaint, the victim), the accused, and any witnesses.
  4. Don’t demean, belittle, or joke about the alleged victim. It will undermine the objectivity of your investigation.
  5. Compile and review any pertinent documents. Don’t forget social media accounts, email, and text messages. They are your best friends in these cases.
  6. Guard against retaliation, and ensure all employees that their participation will be free of retaliation.
  7. Review all information and make a reasoned decision as to the credibility of those involved and what happened.
  8. Take prompt and effective remedial action, and communicate your conclusions to the complaining employee.
  9. Document the investigation.
  10. Never, never, never retaliate.

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