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This Week's Tip: Harassment Responses and Discipline
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This Week's Tip: Harassment Responses and Discipline

A swift, accurate, and suitable resolution of harassment complaints can
limit damages or, in the case of hostile environment claims, shield you
from liability. Find out how to decide what discipline, if any, is proper.
 
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This Week's Tip: Harassment Responses and Discipline

Do you know what your obligations are to take disciplinary action if your
harassment policy has been violated? Or, in situations where it is not
clear that harassment actually took place, do you know how to prevent
future harassment?

How you respond often will be the determining factor in either preventing
or provoking discrimination claims. A weak reaction is no defense and
may increase your legal exposure.

Alternatively, you don't want to be too heavy-handed. A reflexive or too
harsh response, such as an automatic suspension or termination without
regard to the severity of the conduct, may needlessly provoke a legal
claim by the alleged harasser. Fortunately, however, there are several
simple steps you can follow to help determine the appropriate discipline.

Duty to Prevent Harassment

Your duty both to prevent workplace harassment and to take swift action
to remedy it is well established. Title VII of the Civil Rights Act prohibits
harassment or a work environment that is abusive to employees because
of their race, gender, color, religion, or national origin. In addition, the
Americans with Disabilities Act has been interpreted to prohibit
harassment based on an individual's disability.

Although the most common harassment claims involve allegations of
sexual harassment, the same legal analysis applies when the offensive
behavior is aimed at any legally protected class. Most states also have
laws forbidding workplace harassment, as do many cities and other local
governmental authorities.

When Your Harassment Policy Has Been Violated

Of course, discipline is generally one of the last steps in any harassment
procedure. It should follow only after you have conducted a thorough
and prompt investigation, interviewed all involved parties, and carefully
weighed the evidence. If you conclude that your harassment policy has
been violated, disciplinary action is then the next step.

As a general rule, your disciplinary measures should take into
consideration the nature and seriousness of the harassment and should
also reflect whether it is the first violation of the policy, or part of a
broader pattern of harassment. In addition, you should follow your
organization's standard disciplinary guidelines and make sure your
action properly matches any similar past precedents.

Courts and the Equal Employment Opportunity Commission (EEOC)
generally agree that in order to escape liability under Title VII employers
must take appropriate remedial action that is "reasonably calculated" to
stop the harassment and prevent any future occurrences. In addition,
the disciplinary measures should also be appropriate to the seriousness
of the offense.

Of course, for any discipline short of termination, the harasser should be
warned that further incidents will not be tolerated and will result in
additional action.

No Violation of the Policy

If you investigate a complaint of harassment and determine that your
policy was not violated, you should not take any action against the
accused harasser or retaliate against the complaining employee. You
should, however, explain in appropriate detail to the complaining
employee why the evidence did not support the claim.

You also need to be prepared for the complaining employee's
dissatisfaction with your decision. As a safety valve, most employers
invite the employee to submit any further evidence and assure her that it
will be investigated. In addition, you should remind the employee that
she may appeal the decision using your normal complaint resolution
procedure. Any empathy you show for the complaining employee's
concerns will help neutralize the type of emotional reaction that often
leads to a claim with the EEOC or to a lawsuit.
 
Inconclusive Investigations

Unfortunately, there often are circumstances when the results of the
investigation are inconclusive or your findings are ambiguous. However,
even in these instances, you should not dismiss the complaint lightly or
without explanation. Any apparent lack of concern may aggravate the
problems between the complaining employee and the alleged harasser,
and signal to other employees that your harassment policy is ineffective.

To preserve the integrity of your policy, you should explain to the
complaining employee why the evidence was inconclusive. You also
should express the organization's commitment to its policy and assure
the employee that the alleged harasser will be warned about the
consequences of any inappropriate conduct. In addition, you should
explain the appeals process and encourage its use if she feels the
decision was unfair.

Finally, if there appears to be evidence of a continuing conflict between
the two parties, you should attempt to resolve it or take some
nondisciplinary action to ensure it does not continue. This action can
include the transfer of one of the parties or the reassignment of job
duties. Remember, however, you must be sure that any action taken
does not appear to be retaliatory to the complaining employee, such as a
demotion or a transfer without her agreement.

Follow Up on Effectiveness of Remedial Action

Whatever action you take, you must follow up to ensure that there is no
retaliation and that no new incidents occur. This step is crucial because,
even if your initial remedial action was sufficient, you have an ongoing
legal obligation to respond if the harassment continues or intensifies.

This follow-up can be particularly important in situations where the
alleged harasser receives only a warning or written reprimand, and then
continues to work with the complaining employee. Courts often have
noted that, while a verbal warning and counseling may be very effective
initial steps, the employer has a further duty to make sure the
harassment does not continue or recur. It is not enough for you to "cure"
one symptom of harassment if you do not address the entire disease.

In addition, any discipline you impose should be documented and
communicated to both the complaining employee and the harasser. You
should assure the complaining employee that the harasser's conduct will
be monitored and encourage her to report any subsequent harassing or
retaliatory conduct.

Both parties also should be given the opportunity to express any
dissatisfaction with the outcome and to appeal the decision. An appeals
process conveys additional fairness and impartiality and may encourage
both sides to accept the final decision as the product of a fair and
complete process.

Take Action to Resolve Harassment

Recent cases addressing workplace harassment show clearly that an
employer's prompt and effective response is key to limiting liability.
However, appropriate discipline should be just one step in your overall
prevention and resolution strategy.

You also should have a strongly worded policy prohibiting harassment
and encouraging complaints, should train your employees about the
policy, and should implement a complaint procedure to investigate and
resolve complaints in a timely fashion. By taking these actions, you can
both help prevent liability for harassment and, just as importantly, create
a productive work environment.

Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find a model harassment policy and more information on the
legal issues of harassment in Productive Work Environment, Chapter
201A.

If you do not subscribe to the Personnel Policy Manual or CD service,
and you'd like to use it free for 30 days to see if you like it, go to:
http://www.ppspublishers.com/service2.htm

Or just give us a call toll-free at 1-800-437-3735.
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