When an employee complains that he or she is being harassed on some basis that is illegal under the law (e.g., sex, race, religion, etc.), the employer is obligated by federal and state laws to take prompt and effective remedial action. With rare exception, that action should start with conducting a thorough investigation. And the investigation must be immediate. When the investigation is over, the employer is faced with critical questions about how to respond to what the investigation revealed. What the employer does at this point can make the difference between having a “good” and “bad” outcome for the offender, the complaining employee, and the company.
As part of the investigator’s duties, he or she will likely ask the complaining employee what resolution the employee would like to see. On many occasions, the employee demands that the alleged harasser should be fired. And in some instances, firing the offender is the right thing to do. It is not, however, the only acceptable resolution and often may not be warranted.
What if the investigation reveals that some of the conduct complained of took place but it was not illegal? What if the conduct was inappropriate but did not cross the line into illegality? Most employers’ harassment and conduct policies make clear that inappropriate conduct will not be tolerated. Those are good policies and put employees on notice that the employer expects professionalism at work. But it also means that the employer should address inappropriate conduct even if it does not violate harassment policies.
Employers have a wide range of resolutions from which to choose, and the only requirement is that the resolution suits the circumstances. For example, suppose the offender has been a good employee in the past without any record of performance or conduct issues. If the conduct was not severe, and perhaps happened on only a couple of occasions, an employer can consider issuing verbal warnings (with documentation that the verbal warning was given), written warnings, or some other form of disciplinary action such as ineligibility for promotion or bonuses for a period of time during which his or her conduct will be under close scrutiny. This may be appropriate where, for example, the complaint is that a particular employee told a couple of sex-based jokes at work during the past two or three weeks. If this is not the employee’s usual demeanor and it has never happened in the past, termination of employment may not be required and, in fact, could be an overreaction.
Of course, the offending employee’s conduct must be assessed in the context of what else, if anything, has been going on in that particular workgroup, whether the conduct is related to issues the complaining employee has had with the offender or others, or whether the conduct is in some way retaliatory. But if the jokes are isolated incidents and the offending employee has no other issues in his or her past, a termination of employment potentially could raise more issues for the employer than the conduct that gave rise to it.
On the other hand, if the conduct is more severe than “just” a few bad jokes, the employer may need to take more aggressive action. And again, depending on the offending employee’s work history, the history between the complaining and offending employee, the type of conduct at issue and the context in which it occurred, the employer still may have some options other than termination. Serious discipline such as demotions, ineligibility for pay increases and bonuses for significant periods of time, negative employment reviews, and/or the removal of supervisory duties can be accompanied by requirements to attend counseling or special training sessions and harsh “shape up or ship out” written warnings. The employer also could combine several different responsive actions and include training for the entire affected department.
An appropriate response from the employer depends on factors such as the severity of the conduct, work histories, how the employer has handled similar situations in the past, risks of liability, workplace culture, etc. In some instances, terminating an employee for engaging in certain behaviors may be necessary, whether it’s because of the seriousness of the conduct, the fact that the conduct has been repetitive, or because the offending employee has a history of exercising poor judgment. Termination may also be necessary where the combination of circumstances results in an unacceptable risk of liability or because the employer needs to demonstrate that it takes inappropriate conduct seriously.
Remember, each situation requires an individual determination so that the employer is carefully balancing the need to stop certain conduct (and prevent it from occurring in the future) with the risks of liability and the desire to foster a workplace environment of which employees can be proud. Work in conjunction with your company’s human resources professionals and legal counsel to assess harassment complaints. Prompt, effective resolutions are key elements for maintaining a loyal workforce and minimizing risk.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.