Employers need to be able to appropriately handle complaints made by employees regarding harassing or discriminating behavior appropriately in order to stay out of legal trouble. It is vital that employers understand when they are legally responsible for their employees' unlawful actions.
If a company president or high-ranking company official commits harassing or discriminatory behavior, the company is automatically responsible and has no defense. The main issue in these scenarios would be the extent of the behavior and what damage resulted from the behavior.
Companies are immediately responsible for discriminatory behaviors of supervisors, especially if the results of the behaviors were termination or demotion. Again, the company has no defense and the main issue would be to what extent damage was done.
Training is needed on how to handle complaints
In many situations, the law assumes responsibility and the company does not have any way to defend itself, which is why training is so important. Training on how to handle complaints needs to emphasize that even when a complaint is not made, but discriminating behavior has occurred, employers are still legally responsible for what happened. All levels of management need to keep an open communication with employees and foster an environment where employees feel comfortable in bringing up complaints, especially on questionable behavior.
Another scenario that should be explained during complaint training is when an employee experiences discrimination and he/she did not sustain any type of employment action, such as being fired. The conditions for the employee become so unbearable that the employee chooses to quit. This type of scenario is called "constructive discharge," which means that the working environment became so bad that a reasonable person in the same scenario would be compelled to quit. In many constructive discharge cases, the company has no defense, just as if the supervisor/manager had terminated the employee as a result of the illegal behavior.
If a supervisor becomes harassing, but does not fire or demote the employee (and the employee does not quit), the company may still be legally responsible. Concluding that the harassing behavior was severe enough to be illegal, the company would be responsible unless it could determine both elements of an affirmative defense. To determine this type of defense, the company must show that:
- The company performed reasonable care to prevent and to correct the harassing behavior, and
- The employee unreasonably failed to follow the company's established complaint procedure by not reporting the behavior
The affirmative defense permits the company to claim that it would have addressed the situation, but the employee did not make the company aware of the behavior.
Non-supervisory employees may also be guilty of harassing behavior. This may involve creating a hostile work environment. For example, if a female employee is subjected to sexually suggestive comments or behavior, or a minority employee is harassed through racial slurs, the company could be held legally responsible for the conduct. Since minor, isolated occurrences of unwanted behavior are not generally considered illegal, these situations may involve the issue of "how much is too much" in response to the discriminating or harassing behavior.
Company-wide training on how to prevent and handle complaints regarding harassing and discriminating behavior is key with any size organization. Employees on any level need to understand the effects of their behavior and that some behaviors will not be tolerated. By educating everyone on these topics, the groundwork will be established in creating a more employee-friendly and more comfortable working environment.
Source: JJ Keller