Sometimes, a problem employee claims harassment as a way to protect herself from legitimate discipline. When that happens, it may be tempting to ignore such claims on the presumption they are bogus. It may be tempting to dismiss her complaints as much ado about nothing.
But you’ll ignore her at your own peril. The fact is, even if a court says your discharge was for legitimate work problems, that doesn’t mean she can’t sue for harassment if her allegations were in fact true and you did nothing (or not enough) to investigate, fix or prevent further problems.
That’s why it’s essential for HR to thoroughly investigate all harassment and discrimination claims and act on them if appropriate, regardless of the source of the complaint.
Recent case: Laila Elmiry had a bright career for her first few years with Wachovia, receiving several promotions and positive reviews. But after Sept. 11, 2001, Elmiry, who emigrated from Egypt, said co-workers mocked her accent and clothing. She said they made remarks such as, “You Arabs are all the same—you come here, take our money and then bomb us” and “Bush wants her to go back” to Egypt. Other co-workers complained that Elmiry was ruining the “Italian flavor” of the branch. Those kinds of comments, Elmiry claimed, took place weekly for two years. Elmiry complained to her supervisor and to HR in 2002, but the harassment continued.
Meanwhile, the HR office remained focused on problems with Elmiry’s performance, which surfaced around the same time. Among the allegations was that Elmiry had sold a customer a financial product she did not have the right license to sell. Elmiry admitted her actions violated Securities and Exchange Commission rules. HR used, carefully investigated the performance issues and ultimately terminated Elmiry in August 2003.
What no one did was address her harassment claims.
After Wachovia fired her, Elmiry sued for discrimination, retaliation, a hostile environment and punitive damages.
The court found that Wachovia had a legitimate business reason for firing Elmiry, and had rightly imposed progressive discipline before terminating her. The court also noted that the individual racist comments made to Elmiry, on their own, were not severe enough to constitute a hostile environment. But those comments, made weekly over a period of two years, added up to one. And since the court found “no evidence of any action taken whatsoever” by Wachovia to address Elmiry’s complaints, the company was liable for the hostile environment, including possible punitive damages. (Elmiry v. Wachovia, No. 04-3621, DC NJ, 2007)
Note: You can’t always prevent bad behavior by your employees, but once you’re aware of it, it’s your responsibility to respond promptly and decisively. Train supervisors and managers to take all complaints seriously. Any harassment complaints should be immediately reported to HR, logged and investigated. HR must be prepared to show exactly how the case was handled, how the investigation was conducted, what the conclusion was and what, if any, action was taken. If the investigation concluded there was no harassment, be sure to explain how HR arrived at that conclusion.
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