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Best defense against harassment complaints: Robust policy and prompt investigations

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in Discrimination and Harassment,Human Resources

HR professionals can’t be everywhere at once, making sure no boss ever harasses a subordinate. It will happen, even in the best, most progressive organizations.

Protect against such nonsense with a robust anti-harassment policy. Prohibit all forms of harassment, not just ones that are clearly illegal. You don’t want any form of bullying going on. Back your policy with a commitment to promptly investigate harassment allegations.

Have several ways for employees to complain—make it so easy that no one has an excuse for failing to report offensive conduct. Never ignore a complaint that comes in through another avenue, such as a letter from an employee’s lawyer.

Immediately investigate every complaint, starting within one business day. If the allegations are true, leave no doubt that you’ll take action to correct the problem.

While the investigation is going on, separate the parties. Once it is complete, communicate your findings and your solution with the complaining employee. Follow up to make sure the problem stays fixed.

Recent case: Jeffrey worked for AT&T as a retail manager. About 10 times a month, David, the area sales manager, visited the store. David was not easy to get along with and peppered Jeffrey with offensive, homophobic-sounding comments.

For example, he told Jeffrey, “You should change your name to Virginia or Margaret.” Once he said, “You look like a girl.” He suggested that Jeffrey enjoyed hobbies like sewing and quilting and criticized Jeffrey for an equal-rights bumper sticker he had on his car. Finally, David allegedly called Jeffrey a necropheliac, suggesting to other employees present at a meeting that Jeffrey has sex with dead people.

Jeffrey couldn’t take it anymore and contacted his attorney.

AT&T has a comprehensive business-conduct policy that forbids any form of unlawful harassment. The code spells out how to complain. As soon as HR received a letter from Jeffrey’s attorney spelling out the harassment he was enduring, AT&T opened an investigation. It also removed David from supervising the store. It also allowed Jeffrey to take a leave of absence pending an investigation.

After interviewing all employees who worked in Jeffrey’s store, AT&T permanently transferred David, gave him a written warning and ordered him to undergo training in appropriate professional conduct.

Jeffrey quit and sued anyway.

He lost his case in part because the court found that AT&T had done everything it was reasonably expected to do.

It had a robust policy, it investigated thoroughly and promptly and it came up with a solution that guaranteed Jeffrey would not have to endure any additional ­harassment. (Kalich v. AT&T Mobility, No. 10-2554, 6th Cir., 2012)

Final note: The court wasn’t convinced that the behavior Jeffrey endured was sexual harassment. It characterized the comments as rude, bullying and despicable, but probably not based on sex. In fact, there was no evidence that Jeffrey’s sex or sexual orientation had anything to do with the conduct.

The court also said that an employee cannot win a sexual harassment case based only on his personal belief that the harasser is trying to get him to announce his sexuality and “come out of the closet.”

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