In too many cases, when it comes to sexual harassment complaints it’s the retaliation that really does employers in.
In Fiscal Year 2019 the most common Equal Employment Opportunity Commission claims were allegations of retaliation. In 2019, over 39,000 retaliation complaints were filed—about 54% of all claims—the highest percentage ever and the 18th consecutive year in a row with an increase.
Most of these involved sexual harassment claims, which resulted in $68.2 million collected from employers in 2019, up 20% from the previous all-time high of $56.6 million in 2018, and nearly double the $35 million collected in 2014.
These numbers highlight the importance of robust human resources policies and training, say attorneys T. Matthew Miller and Anne R. Yuengert of the law firm of Bradley Arant Boult Cummings, who offer advice on how to avoid retaliation claims.
“Employees who complain of harassment are immediately cloaked in the robe of protected activity and shielded from any adverse treatment for having reported illegal conduct,” they point out. “Not only is that the law, but undeniably that is how it should be. No employer should retaliate against an employee for lodging a good faith allegation of harassment.”
Documentation is your first line of defense, they say. If you move the complaining employee to another location or shift to avoid contact with the alleged harasser, document why you did so. Employees often complain that although they were harassed, they were the ones forced to move shifts or jobs.
“Usually there is a very good reason for the decision, but rarely is it documented and even less rarely is it explained to the employee and documented,” the lawyers note. Ask the employee to acknowledge in writing options offered and the choice they made. If they refuse to move shifts, document why you cannot move the alleged harasser and have the complaining employee acknowledge that decision.
Too often employees are told there will be no retaliation but are not informed about what to do if it happens. Inform them in writing to bring any perceived retaliation to the immediate attention of someone you have designated. This should not be the employee’s immediate supervisor, but someone trained in addressing these issues, such as the director of human resources.
Also, follow up to ask the employee how things are going. Document this and if the employee raises concerns, document how they were addressed.
If you have to discipline or terminate an employee who complained, take your time, Miller and Yuengert stress. “As much as it may pain you to do so, and regardless of pressure from the employee’s supervisor to take some action, give yourself extra cushion before you discipline or terminate an employee who has complained of harassment.”
This is particularly true if the employee’s file was clear of disciplinary action prior to their filing a harassment complaint. Former employees routinely cite the sudden appearance of disciplinary actions in their file that appeared only after their complaint was made.
Significant disciplinary action should be reviewed by someone above the supervisor level, such as the HR director. If the employee was in line for termination prior to the harassment complaint but you had not gotten around to finalizing it, look for a clear paper trail showing the decision was final prior to the complaint. If it’s not there, you might want to reconsider. Without documentation, the argument that the termination was in the works can be difficult to prove.
Of course, it’s better to have training, and swift action prevents sexual harassment complaints being filed. But if a complaint does happen, make sure that a prompt, effective harassment investigation doesn’t become a slow, expensive retaliation claim, Miller and Yuengert urge.
