Thursday, June 25, 2015

A lesson in how NOT to respond to a harassment complaint

Diana Retuerto worked in the office of Berea Moving & Storage. She claimed that the company’s owner, Willard Melton, made “verbal advances” towards her, including comments about dreams he was having about her, her physical appearance, and questions about her makeup and hair. Over time, these advances escalated to professions of love, statements about his constant need for sex, and whispers in her ear that he could not stop thinking about her. He also allegedly would rub up against her and crawl under her desk. After Retuerto reached her limit, she quit and sued for sexual harassment.

In Retuerto v. Berea Moving & Storage, the Ohio appellate court had little trouble concluding that the trial court overstepped by dismissing Retuerto’s sexual harassment claim. Of particular note is the court’s comments about the company’s lack of prompt corrective action after it learned of the harassment.
At the time Retuerto reported Melton’s behavior to her supervisor [Hawthorn] in 2010, Retuerto had not yet received an employee handbook or attended sexual harassment training. After her initial complaint to Hawthorn, Hawthorn spoke to Melton and Melton apologized to Retuerto. There is no evidence that any disciplinary action was taken against Melton. After Retuerto made additional claims in 2012, there is no evidence that Berea Moving conducted an investigation into the matter or took any disciplinary action against Melton.… 
Retuerto also averred that Hawthorn had knowledge of Melton’s ongoing behavior. Hawthorn observed and heard some of Melton’s behavior and told Retuerto that Melton was going through a “mid-life crisis.”
Obviously, condoning acts of sexual harassment as a “mid-life crisis” is a horrible idea. So, that’s what you shouldn’t do in response to a harassment complaint. What should you do?
  1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
  2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
  4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through. 
And, please, please, please, make sure that your employee handbooks have an anti-harassment policy, and that you are training your employees on it.