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Give Your Managers a 4-Sentence Script for Responding to Complaints

By Mindy Chapman, Esq., Mindy Chapman & Associates
8/14/2008 - 8:30am
Discrimination & Harassment

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

When one of your employees confides in her manager that she’s being harassed by a co-worker, what will that manager say? Hopefully, it’ll be something more constructive than “Go along with it,” as in the following case …

Case In Point: Sheryl Bjornson was a used car salesperson for a dealership in Idaho. Her general manager allegedly swore, made comments about her body, shared his sexual exploits, cracked sexual jokes and repeatedly touched female employees. Bjornson complained to her immediate supervisor. His response: “Go along with it.”

So Bjornson turned to HR. She showed them her daily journal in which she was recording every incident. HR responded by conducting an investigation but never interviewed all the involved parties. Eventually, HR simply disciplined the general manager by giving him a warning to curb his lips.

Bjornson sued for sex harassment under the Civil Rights Act of 1964, which prohibits harassment based on sex. In such cases, employers can assert an affirmative defense against liability if they can show they exercised reasonable care to prevent and stop the unwanted conduct. They can defend against punitive damages if they can show they made a good-faith effort to educate their managers on the issue.

The dealership tried to defend itself by saying it had an anti-harassment policy in place. It also claimed it had done sexual harassment training, but it couldn’t show evidence of that training. (Bjornson v. Dave Smith Motors, July 31, 2008).

How did the case end, and what lessons can be learned?

A jury sided with Bjornson and awarded her $100,000 in punitive damages. The appellate court backed up the jury, saying the dealership acted with “malice and reckless indifference” in allowing the employee to be sexually harassed despite her complaints.

The court said the company had an anti-harassment policy in “existence” but there was no evidence that Bjornson received it. Her personnel file didn’t include a signed policy acknowledgment form. And while there was a dispute about whether or not sexual harassment training took place, there was no evidence to support that it did. Thus, the judge said, the jury properly whacked the employer’s financial knuckles.

3 Lessons Learned … Without Having to Go to Court

1. It’s 2008 … provide harassment prevention training. Today, all organizations should be providing harassment prevention training to their employees on a regular basis. Your “Harassment, Discrimination and Retaliation Prevention Policy” must be the core of it. And, don’t just train narrowly about “sexual harassment.” Remember to include prohibited conduct based on all characteristics protected by federal, state and local laws.

2. Teach managers the four-step script to respond to complaints. To minimize risk and maximize compliance, teach all managers and supervisors (and everyone else in the reporting procedures) how to respond to complaints. Use a simple, consistent four-step workscript:

“I’m glad you told me.”
“You are very important to us.”
“I will help you immediately!”
Then, train the manager/supervisor to immediately call HR and report the incident.

3. Always collect documentation of policy acknowledgment and training. Courts look for proof. You need to make sure all employees have signed a policy or employee handbook acknowledgment form. Make sure it resides in their personnel files. Also, remember to collect attendance sheets and participation forms at the end of all training classes. Had this employer done so, it would have tremendously helped its legal defense, even though the general manager was a poster child of nasty conduct.