Issue: Too many HR people close the book on harassment investigations too early.
Risk: By failing to check if harassment has flared up again, you open the organization to further liability.
Action: Wrap up every investigation by asking the victim to contact you if further problems occur. Document that discussion.
When an employee complains about harassment, it isn't enough to investigate, punish the harasser and close the book on the case. You also must make sure that the harasser or other co-workers don't make life uncomfortable for the harassment victim in the weeks and months to come. Too often, HR overlooks this follow-up phase.
One way to protect yourself: In the final meeting with a harassment victim (when you're explaining the investigation's results), say to the employee, "If you have any problems related to this case or if other harassment occurs, come and see me. If I don't hear from you, I'll assume that everything is OK."
Then, document and date that statement in your notes. That way, if the employee later sues and says the harassment continued, you can point to your statement (and the employee's silence) as proof of your good-faith effort to prevent retaliation.
Case in point: When Anna Jensen, a Pennsylvania letter carrier, complained that her supervisor had sexually harassed her, the Postal Service investigated and fired the supervisor. But that didn't end the matter.
Jensen's co-workers began a hazing campaign against her. One co-worker insulted her, calling her "the [obscenity]" who got the supervisor fired. Another repeatedly walked up behind Jensen and made loud noises.
Jensen took time off for stress. She sued, alleging that she suffered retaliatory harassment for her complaint, and a federal appeals court sided with her. Follow-up questions by HR could have identified the continuing harassment and thus prevented the lawsuit. (Jensen v. Potter, No. 03-CV-01202, 2006)
Note: Circuit courts have split on the issue of how egregious an employer's conduct must be to constitute "retaliation" under Title VII. The U.S. Supreme Court will soon rule on a case that will help clarify the definition. (Burlington Northern v. White)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Quality checks of phone calls don't give you license to eavesdrop
- Beware ill-chosen words, which--all by themselves--can sometimes launch lawsuits
- When termination follows military family leave
- USERRA: Beware any reference to military service when justifying discipline