If you downloaded your company handbook from the Internet or took it with you from your last job—beware! Take a look at your anti-harassment policy’s reporting procedures. Do they make sense within your organization? Do they clearly tell whom employees should go to if they need to make a complaint? Or is it just a list of job titles that may confuse employees?
A new court ruling shows why you should take your policy out, dust it off and look it over closely … at least before a jury does.
The court held that, as an employer, you often can avoid liability in harassment lawsuits by showing you maintain “a reasonable mechanism by which the victim of the harassment can complain to the company and get relief.” If you then can prove that the victim failed to use that procedure, you win.
But if your complaint-filing procedures are complex and confusing, a court may green-light the lawsuit anyway, even if the victim ignored the reporting procedures.
A complaint, but to whom?
Samekiea Merriweather was 16 years old when she went to work for V&J Foods, which owned several fast-food restaurants, including a Burger King. It was her first job, and she was scheduled to work after school and on weekends. Her boss was Tony Wilkins, a 35-year-old bachelor who—it turned out—often engaged in sexual relations with female subordinates. He soon focused on Merriweather, who rejected his kissing, rubbing and suggestions of hotel liaisons. That made Wilkins mad, so he fired her—and then eventually rehired her and resumed his sexual harassment.
Merriweather repeatedly complained to her shift supervisors. No one did a thing.
Once, the assistant store manager tossed Merriweather a phone number he said she could call to make a complaint. It was the wrong number.
Merriweather’s mother eventually came to the restaurant and complained to a shift manager. Wilkins found out and immediately fired Merriweather. The teen notified the EEOC, which filed a lawsuit on her behalf. V&J Foods argued that it shouldn’t be liable because an employee’s mother has no standing to put the company on notice of harassment.
But the court ruled otherwise, saying Merriweather’s mother acted as her “agent” in filing the complaint, as lawyers often do. (EEOC v. V&J Foods Inc., 7th Cir., 2007)
Why the handbook must be clear
The ruling made an important point about drafting complaint procedures that all employees can understand.
V&J Foods’ handbook informed employees that they were to direct harassment complaints to their district managers. However, employees never received the names or phone numbers of those managers. In fact, no such position appeared in the employee handbook, although it did list other corporate managers.
The court said that determining whether a complaint procedure is “reasonable” depends in part on the makeup of the work force.
For example, explaining complaint procedures in English to employees who don’t understand English isn’t reasonable. In the same way, failing to tailor a complaint procedure to the needs of young employees also isn’t reasonable.
The court warned, “An employer is not required to tailor its complaint procedures to the competence of each individual employee. But, if it is part of the business plan to employ teenagers … the company was obligated to suit its procedures to the understanding of the average teenager.”
The court said V&J Foods’ complaint procedures were “likely to confuse even adult employees.”
To add to the confusion, the company asserted it had a “hotline” number printed on every employee paycheck. However, not only was the number located in an inconspicuous place, but the instructions next to the number said it was to be used to “comment” about the company. That made it sound like a “suggestion box,” not a mechanism for reporting sexual harassment.
What’s more, it became clear that when the company did learn of harassment, it directed complaints to its general managers—even if, as in Merriweather’s case, the general manager was the one doing the harassing! The court said “a policy that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law.”
How well does your policy stand up to the issues this case raises? If it’s lacking, revise it now.
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