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Harassment policy should have several ways to complain

by on
in Discrimination and Harassment,Human Resources

Your organization probably has a sexual harassment policy and provides training on how it works. But does your policy give employees more than one way to lodge a complaint? It should.

Here’s why: Employers have a limited defense against sexual harassment complaints if they have a harassment policy backed by an effective training program that tells employees how to register their complaints. Employees who claim they were forced to work in a hostile environment and didn’t suffer termination or some other adverse employment action can’t later win a lawsuit if they fail to use the company’s complaint process.

But employers can lose that defense if there’s just one way to complain about harassment, and that route turns out to be ineffective—e.g., the supervisor to whom complaints should go winds up ignoring the complaint. As the following case shows, if an employer provides several ways to complain and an employee gives up after her first try falls on deaf ears, courts won’t often punish the employer.

Recent case: Debra Lauderdale worked as a corrections officer for the Texas Department of Criminal Justice for just four months. She quit abruptly and filed a sexual harassment lawsuit.

The problem began during her initial training, when the man who would become her shift supervisor began asking her out on dates. He was quite persistent, sometimes calling her 10 or 15 times per shift and generally making a nuisance of himself.

The department had a clear sexual harassment policy and provided training for everyone, including Lauderdale. The policy told employees they could speak with their immediate supervisors about harassment, which Lauderdale did. But that supervisor brushed her off, telling her she could call the warden, but to leave the supervisor’s name out of it. However, the policy also listed other ways to complain—contacting HR, the executive director, the EEOC and the Texas Commission on Human Rights.

When Lauderdale quit and filed her sexual harassment complaint, the department investigated and quickly punished the alleged harasser for “discourteous conduct of a sexual nature.”

The 5th Circuit Court of Appeals dismissed Lauderdale’s case. Although it ruled that the persistent calls could have been classified as sexual harassment because they were offensive and pervasive, it said Lauderdale should have done more than speak with her immediate supervisor. She knew there were other avenues she could pursue, and didn’t do so. That was unreasonable, the court concluded. The court also pointed out that the employer took immediate action once it learned about the persistent phone calls. (Lauderdale v. Texas Department of Criminal Justice, No. 06-41636, 5th Cir., 2007)

Final note: If you provide just one way to complain, you are at the mercy of that way. If a supervisor doesn’t pass on the complaint because he doesn’t consider it serious and the behavior escalates, you don’t have much of a defense. It then looks as if your sexual harassment policy is just window dressing.

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