H.R. Alert

The Sensible Approach to Avoiding Harassment or Discrimination Claims

On average I investigate and resolve between four to six cases of harassment each year; the majority of which are sexual harassment. The size of the organization affected does not matter. The worst cases can still be found among employers with fewer than ten employees. The types of organizations are also irrelevant; I have investigated cases with general contractors, hotels, dentists, property managers, marinas, mortgage brokers and financial institutions.

These investigations are nasty, time consuming, disruptive and expensive to employers. Investigations involve several days of interviewing employees and managers along with consultations with employment attorneys. Dispositions are only reached after very careful consideration of the circumstances and the application of the law. Following completion of the investigation I document the investigation in a report with my recommendations. Without exaggeration, once an organization is touched by one of these investigations it rarely remains the same. The only good news is that with my involvement in the matter is settled and does not evolve into litigation.

Financially, litigation can become very costly! I recall one of my clients standing in my 2007 February Employment Law Update seminar warning my other clients to take this matter seriously. He confided to the audience he had spent $30,000.00 each month in legal fees. Interestingly, the Department of Fair Employment and Housing told the plaintiff she did not have a case. My client was still out hundreds of thousands of dollars in legal fees.

So what can we learn from these horrible nightmares. Consider the following:

I.    Take this problem seriously! You can be very vulnerable if you do not take the following steps.

II.    Become well informed and keep up with new developments in employment law. This is a rapidly evolving area of litigation.

III.    Watch your own language and behavior. You will be amazed to learn what the courts consider harassment.

IV.    Prohibit, at work, any joking or comments that have a racial or sexual basis.

V.    Recognize harassment may involve any remark or joke that identifies an employee's age, pregnancy, gender, sexual orientation, mental or physical disability, ethnicity, religion, recent injuries, etc.

VI.    Appreciate the fact that you are not only liable for your employees and managers but your vendors, suppliers, sub-contractors and consultants as well.

VII.    Have me prepare a harassment policy to be included in your employee handbook. Frankly, it is better I prepare a policy which has been updated and blessed by my employment attorneys. It is thorough, complete and consistent with present employment law.

VIII.    Treat all employees fairly and equally, and with respect.

IX.    Understand that the motivation of the alleged harasser is irrelevant once a charge has been filed. Even if the "alleged harasser" was playing a joke or being humorous it does not matter. If the remark or behavior offends even one person it still can be considered harassment.

X.    Comply with Posting and Employee Notification Requirements

A.    All employers are required to post a California Department of Fair Employment and Housing poster, which includes information about the illegality of sexual harassment. The poster must be displayed in a prominent and accessible location in the workplace, according to Government Code sec. 12950(a).

B.    All employers are required to prepare an information sheet on sexual harassment and distribute it to all employees. Be sure to get receipt signatures from each employee. The California Department of Fair Employment and Housing and the California Chamber of Commerce both have posters and sample information sheets available for purchase.

XI.    Investigate and remedy any reported sexual harassment PROMPTLY upon receiving a complaint from an employee. I would recommend you contact me if you ever receive a complaint. Chances are you can handle it on your own. On the other hand, if I see some risk I may suggest I interview the employees involved.

A.    Document each step taken by management in investigating any claim of sexual harassment, and,

B.    If harassment is found, take and/or document disciplinary action taken against the harasser.

XII.    Regardless of the size of your organization I would recommend we train all your employees with the focus on your supervisors and managers. Why? Because an organization is automatically vicariously liable for the conduct of its managers if they are found responsible for some form of harassment. Did you know managers and supervisors are also personally liable if they become involved in this prohibited behavior?

By law if your organization has fifty or more employees (including temporary, part-time or seasonal) we have to conduct training with your managers and supervisors every two years.

Sincerely yours,

Larry Levy

P.S. If your employees ever work in San Francisco please call me and request a summary of the City's new paid sick leave ordinance.

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