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Strive for harmony, plan for a lawsuit: Document every complaint

by on
in Discrimination and Harassment,Human Resources

Of course you have an anti-­discrimination and anti-harassment policy. You make sure employees know about it. You even make it easy for employees to use the policy by providing clear instructions on where to go with a complaint and what to expect when they do.

But all that can be for naught if you’re unable to track those complaints—maybe because voice mail or email messages got deleted or notes of your conversations with complainants or witnesses went missing.

Unfortunately, failing to accurately and completely track every complaint could mean all your anti-discrimination and anti-harassment efforts will backfire if the case winds up in court.

Here’s how that might happen: An employee has been through your disciplinary process. It has become obvious that if she doesn’t change her behavior and performance, she’ll be fired. When you finally let her go, she sues, alleging retaliation. She’ll claim she complained many times about discrimination and you ignored her and didn’t do anything about the situation.

That’s when you need detailed rec­­ords showing whom she called, when she called and what she said—in addition to showing that you took action when the facts indicated you should.

Recent case: Joan worked as a licensed practical nurse for a nursing home. She is black and of Nigerian origin. Soon after Joan was hired, management began receiving complaints from her co-workers and patients. They said Joan was argumentative, and allegedly slammed doors, refused to medicate patients and otherwise acted disruptively.

After a series of suspensions and other discipline, she was warned that any further incidents would result in termination.

Then a patient’s daughter reported that Joan had refused to provide prescribed pain medications to her mother. Joan was suspended and the daughter was interviewed. The nursing home then terminated Joan.

Still, Joan sued, alleging she had been fired in retaliation for complaining about discrimination and harassment.

But the nursing home had kept careful records of every employee’s complaints, including Joan’s. That documentation showed that everything she had complained about before she was fired basically amounted to workplace trivialities. She had expressed dissatisfaction with her assignments and reported arguments with her co-workers, but never mentioned race or racially tinged harassment.

The only time race came up was after she was fired, when she called the company complaint hotline to report race discrimination and harassment.

Joan’s case was dismissed. (Ochei v. The Mary Manning Walsh Nursing Home, et al., No. 10-CV-2548, SD NY, 2013)

Final note: Some employees argue that they didn’t dare complain openly about race discrimination or harassment, but assumed that their employer would investigate anyway and uncover the problem. To counter this, be prepared to show that you investigated every claim—and that you found nothing that hinted of discrimination.

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