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Should we go ahead with layoffs–including someone who complained about harassment?

by on
in Discrimination and Harassment,Human Resources

Q. Our company has been having financial difficulties and we have considered reorganizing for several months. Our chief operating officer has been charged with determining whether any of the current jobs can be eliminated. Recently, before any final reorganization decisions were made, an employee came forward claiming that the COO had been harassing her and had created a hostile work environment.

As the HR director, I immediately initiated an investigation. It revealed that the COO had made several unkind remarks to the complaining employee and other employees, but that the comments were not discriminatory or harassing in nature. I determined that the COO should work with an executive coach, and the company president and I issued a written warning to the COO about the importance of treating employees with respect.

Two weeks after the investigation concluded, the COO made final recommendations to the president about positions that could be eliminated. The list included the complaining employee’s job and those of two other employees who had participated in the investigation. The COO’s stated reasons for selecting these positions appear to be sound and unrelated to the employee’s complaint or the investigation. Indeed, in early discussions about the possible reorganization, company officers had questioned the need for these positions. Can our company go through with the reorganization and terminate these employees?

A. You are between a rock and a hard place. It sounds like the reorganization is in the business interests of the company, but going through with the reorganization right now, if it involves terminating the complaining employee and other witnesses interviewed, makes the chance of a retaliation claim very likely.

The number of retaliation claims filed each year continues to grow. The EEOC reported that in fiscal year 2012, retaliation claims made up close to 40% of the agency’s docket.

Because of the threat of a retaliation claim, you should work closely with your attorney on this situation.

In this case, it may be wise to put a temporary hold on any termination decisions so your company has time to step back and carefully analyze the reorganization decision and make a thoughtful risk/benefit analysis about strategy going forward. Because the COO was the subject of a harassment complaint, it may be prudent to have another company official conduct a separate review of his recommendation. In that review, the official should be cautious of any factors identified that seem subjective or that may be related to the employee’s complaint. The review should be carefully documented.

If that independent review demonstrates that the COO’s selection of these positions for elimination was not appropriate, your decision is easy. Don’t go through with the terminations.

The decision is actually harder if the review shows that the positions really should be eliminated. While this review indicates that the position eliminations are not the result of unlawful retaliation, the risk of a legal claim still exists because, to the employees, the decision may be viewed as retaliatory. In this case, you need to weigh the benefits of the position eliminations against the possibility of having to defend against potential retaliation claims.

If you decide to go through with the terminations, you may want to consider offering separation packages conditioned upon a release of retaliation and other types of legal claims.

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