TODAY: an employee walks into your office and mentions he/she is being sexually harassed at work.
What do you do? Do you have a plan? Hoping this never happens is not really a plan.
This is our third article discussing sexual harassment in the workplace. In part one, we examined the Five Big Myths about Sexual Harassment. A common theme would be: everyone needs to worry about sexual harassment. In part two, we discussed the different types of sexual harassment under Title VII: quid pro quo and hostile work environment.
In this installment we examine an action plan for you firm should you face a sexual harassment complaint. You must plan for a difficult situation. Spontaneous planning never succeeds. The best business advice: Hope for the Best, but Plan for the Worst. You need to plan.
Let’s assume the worst has just happened. An employee has come to your office to make a complaint of sexual harassment. What do you do now (besides panic)?
Let’s reduce the process into three simple components. The three big steps are: Inform, Document, and Take Action! Let’s get to the details.
First, inform your lawyer. (If you don’t have one, get one, now.) This process only takes a second, and should not be forgotten. While the primary law on sexual harassment is federal, many states have added additional protection. Your time to react depends on federal and state laws, so you will need a local attorney. Do not wait. Most states have short time limits for your actions/reactions. One of the first things your lawyer will want to see is your employee handbook, to make sure you follow all the procedures you promised in the handbook. (If you don’t have an employee handbook, now is a good time to consider one). The handbook is a promise between the employer and the employee on procedures if problems arise. You must live up to your promises to employees. Your local attorney is the best position to protect your interests and to provide sound advice on how to proceed.
Second, document everything immediately and without judgment. Memories fail and witnesses scatter. Gather information while you can. Have everyone who was present at the incident write down what they remember. What if one employee does not remember anything? Have him/her write down that he/she does not have any memory of the event, just in case he/she changes the story and suddenly has vivid memories of the event later.
Everyone should make a written statement with details (who what where and when). Be specific about dates, times, and people’s names and actions. Do not worry about the why. That is a different rabbit hole which you do not want to enter. Make sure each person’s statement is signed and dated (even if the text is typed). The more witnesses, the better. You cannot have too many witnesses.
In the process of collecting everyone’s statements, do not make any judgments. Do not imply one side or another is believed. Do not argue with the victim, witnesses, or perpetrator. Just record all the facts for now. People will have different recollections (sometimes exact opposite versions of the events). Do not worry about the conflicting accounts. Just make sure you record as much of the contemporary facts as possible, before memories start to fade.
You, as the employer, should also document your memories of the event as soon as possible, while the event is fresh in your mind. You are the employer, but might also be a witness.
If people have photos/videos from the time of the incident (and these days every moment is captured by someone’s phone), gather and save copies of them on a hard drive.
If this incident results in a lawsuit or discrimination complaint, the contemporary fact statements are invaluable. Without these statements, often times people exaggerate their claims, which affects your firm’s liability.
Third, you need to take prompt remedial action. These magic words are from the statute. While the perpetrator is always responsible for his/her action, the employer can minimize their liability by taking prompt remedial action. Prompt remedial action can minimize, reduce, and mitigate your firm’s financial liability. Prompt remedial action shows the employer’s dedication to reducing sexual harassment in the workplace. Are you dedicated to reducing sexual harassment at your firm? What evidence do you have?
So what is prompt remedial action?
Have you explicitly told your employees of your firm’s policy towards sexual harassment? How can you prove this? Usually, this takes the form of training for employees on sexual harassment. (Your attorney can help arrange this). The training should be offered without cost to the employees and the employees should be paid for their time in attending the training. You, as the employer will need to document who attends the training (dates and times). Depending on the size of the firm, you might need a couple of sessions to reach all employees.
This training is NOT NOT NOT to discuss the incident or have an informal trial among the workers. The training is NOT NOT NOT a chance for the employees to take sides. You must avoid any impression that the training is to convince the employees of one side or another. The training is to inform all the employees of the types of sexual harassment and the appropriate standards for the workplace.
Also, you should avoid any impression that the training is punishment for the employees not getting involved in the incident. This will lead to resentment. You should not discuss or even mention the names of the involved parties or the incidents in this training. This will be a challenge, since the employees (at least some of them) will know why the training is being done now and who are the parties involved. The training is not a time to chastise the victim or perpetrator. The training is designed to show the firm’s dedication to reducing sexual harassment in the workplace.
Thus far we have discussed the three actions, inform, document, and take action. However, there are some other issues.
Three Special Concerns (The dreaded “What ifs”)
First, what if the victim does not want to write a statement? See if the victim will consent to you recording the conversation. If not, then you make notes of the victim’s statement (again you should sign and date it). You would be amazed how people embellish a story once the problem becomes serious. Get the honest description of events from the start.
Second, what if the perpetrator of the incident does not want to write a statement? See if the perpetrator will consent to you recording the conversation. If not, then you make notes of the perpetrator’s statement (again you should sign and date it). What if the perpetrator will not discuss the issue at all? You should also write down the date/time you tried to discuss the matter with the perpetrator to document your efforts. People change their stories for a variety of reasons, and every change in the story makes it more difficult for you to determine the truth whether the incident results in legal action or hurt feelings.
Third, what if you, the employer, are the accused perpetrator? Would an employee feel comfortable to report to the misconduct done by the boss? Not likely. You need another alternative for employees. Your employee handbook should have another possible person for reporting sexual harassment. (If you do not have an employee handbook, this is another issue to consider). You need a way to allow a third party to hear the complaint. Often, assistant managers or others could be secondary (backup) persons to receive a sexual harassment complaint against the employer. Employees should know this opportunity exists (usually from the employee handbook).
If you find yourself in a situation handling a sexual harassment complaint, treat the matter as serious, document everything without judgment, and take prompt remedial action. Of course, do not forget the all-important first step, get local legal help immediately. Sexual harassment is a serious concern.
A small problem grows into a catastrophe by ignoring it. FBA
Professor Marty Ludlum teaches business law at the University of Central Oklahoma and is a licensed attorney. He has made numerous presentations to the funeral profession at state and national conventions and has written articles in national and state funeral magazines. Professor Ludlum has a Bachelor’s and Master’s degree in economics, a Master’s degree in communication and a Juris Doctor, all from the University of Oklahoma. Professor Ludlum is the Education Director for Osiris Funeral Home Software.
Kara Gray Ludlum is a CPA and licensed Funeral Director in Oklahoma. She operates Funeral Director’s Resource, Inc., a consulting firm specializing in providing Osiris computer software and funeral home accounting. She has made many presentations to state and national conventions. Kara has Bachelor’s degree in accounting from the University of Oklahoma and a Master’s degree in Business from Cameron University. Kara has taught accounting at Cameron University, and has owned and operated her family’s funeral homes for over 15 years.