Don’t wait for a complaint to punish misbehaving staff

Issue: Some supervisors believe in a "No complaints, no problem" motto.

Risk: By ignoring blatant harassment or discrimination, supervisors open the organization to "negligent supervision" lawsuits.

Action: Educate supervisors to act when they see or hear about employee mistreatment. Don't wait for a formal complaint.

The law requires your organization to use reasonable care in supervising its employees. A court can tag your firm with a negligent-supervision verdict if it's proved that it either knew or should have known that an employee's conduct would cause trouble.

It's true that you can't foresee every harassing comment or violent incident. But courts will look at whether you took reason-able steps to guard against the wrongdoing, especially after becoming aware of it.

That's why it's vital to teach managers to investigate misbehavior as soon as it comes to light; don't wait for an official complaint.

Recent case: Banquet chef Tyrone McRae said his catering director (another male) sexually harassed him for several months after McRae declined the director's dinner invitation. The conflict even erupted into a fight. Soon after the fight, McRae was demoted to a lower position and then fired.

McRae sued for negligent supervision, and a jury awarded him $187,500 in compensatory damages and $4.8 million in punitive damages. (Daka Inc. v.

McRae, WL 23018830, D.C. Court of Appeals, 2003)

The key issue: McRae could show that company supervisors were aware of the director's harassing behavior but took no action to stop it. Three points proved his negligent supervision claim:

1. The harassing director claimed that higher management would protect him if he was ever accused.

2. The director repeatedly bragged about his sexual exploits in front of upper management.

3. The director openly boasted to supervisors that he favored attractive male employees.

How to prevent ‘negligent supervision’ claims

To head off liability for negligent supervision, tell managers to be alert for anything that
suggests sexual harassment, sex- or race-based favoritism, violent behavior or criminal
activity, even when nobody has lodged a formal complaint. Some additional tips:
3 Provide training in conflict resolution and communication. Supervisors need to know when to report certain behaviors and which behaviors to look for, such as verbal abuse, failing to cooperate with supervisors or co-workers and making inappropriate comments.
3 Conduct regular performance evaluations, during which specific behavior or job performance changes are addressed.
3 Make sure supervisors and staff are aware of assistance programs available, including your employee assistance program.
3 Provide multiple avenues to receive complaints and have unbiased managers investigate complaints to avoid conflicts of interest. Investigate all complaints promptly, and take decisive action.