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The Double Whammy: What to Do When a Problem
Employee Files a Harassment Complaint
Susan is an employee whom you consider to
be an average performer. However, while she’s on a
scheduled vacation, her temp discovers extensive accounting
errors, several unmailed bills, and an excess of uncollected
accounts receivables. Some of her managers also come to
you complaining about the lag time between their requests and
her services. Bracing yourself to address her
performance issues upon her return, you are blindsided when
she comes into your office her first day back and complains
about a customer’s alleged offensive behavior.
And there’s Paul. While technically savvy,
Paul has had a problem with authority since day one.
Most recently, Paul refused to complete the work Steve had
assigned, saying it was beneath his competency level. He
also went over Steve’s head to complain about Steve’s
management style. When Steve gave Paul a severe written
reprimand, Paul comes to you and complains that Steve has been
discriminating (giving him lesser assignments, making
“teasing” comments) against him ever since he returned from a
leave of absence to recover from a serious medical
illness.
Offensive behavior
complaints are complicated enough to handle without
performance or conduct problems mixed in. On the one
hand, being subjected to offensive behavior can make the best
worker less motivated or act defensively. On the other,
one issue does not necessarily cancel out the other; a problem
employee with a “me against the world” attitude can see
conspiracies where none exist. And we all know that a
problem employee can be harassed just as easily as a model
one. In this article, let’s take a look at how you can
navigate your way through the maze of legal and practical
issues when a problem employee files an offensive behavior
complaint.
Separating the Baby From the
Bathwater
Most human resource professionals are
quite knowledgeable about complaint investigation
protocol. The problem arises when, after successfully,
completing an investigation, someone decides to kill two birds
with one stone and address performance or conduct issues at
the same time they are briefing the complainant about the
investigation’s results. For instance, during a briefing
of the results of my independent investigation involving an
offensive behavior complaint against the complainant’s
manager, the corporate counsel brought up the fact that this
alleged victim’s time sheet showed a pattern of getting to
work a half hour late. In planning the follow-up meeting
with her, he wanted to address the tardiness issue to ensure
that she knew that she would be held accountable for her
behavior, just as her manager was for his.
I strongly encouraged the HR staff to
treat these as two separate issues; after much discussion,
they decided to postpone the one-on-one “you’ve been late”
talk and first address punctuality and other pertinent
attendance issues at an informal office meeting. As it
turned out, the complainant had previously requested, and
received, permission from her manager to adjust her work
schedule to accommodate her child’s school hours. Had
the complainant been reprimanded based solely on her time
sheets, the results could have been disastrous.
Disciplinary action for performance or
conduct does not have to be – and most often should not
- be indirectly addressed first. However, it should be
discussed as part of an offensive behavior
investigation. It is human nature for people to think
two things that occur closely together are related and in this
case, if the complainant thinks a) I filed a complaint and b)
now I’ve been reprimanded, it won’t take long to get to c)
this must be retaliation.
Forget
At-Will
An adverse action is only retaliation if
it is done because the employee complained. You are free to
take adverse actions against an employee for other reasons,
even if that employee has complained about
discrimination. If, for example, an employee performs
his job poorly, you can give the employee a negative
evaluation. If an employee brings a gun to work, you can
fire the employee. The problem for employers is that
some employees will claim that these adverse actions are
retaliation -- even if the actions have nothing to do with the
employee's complaint.
Which means that employees must be extra
careful. Yes, we all know that, in most states,
employers are free to fire at will. However, those of us
who work with juries also know that just because we can fire
someone without justification doesn’t mean we should.
Juries come into the courtroom expecting
employers to be angry about harassment or discrimination
complaints. Since experience has shown many of them how
employers retaliate in subtle ways against complaining
employees, they are more inclined to believe evidence that
would otherwise be considered weak or inadequate. Add a
supervisor’s natural feelings of discomfort or defensiveness,
and it is no surprise that retaliation charges are often given
more merit in the courts than the original
complaint.
When a problem employee has engaged in
conduct which could form the basis of a retaliation complaint
– such as having filed a discrimination charge or an offensive
behavior complaint - the employer should carefully review the
situation to ensure that sufficient justification, and
preferably adequate documentation, exists to justify any
adverse action the employer chooses to take. If you
cannot support the business necessity by provable, documented
facts (which preferably predate the complaint), the employer
should reconsider the timing of adverse action against the
employee.
Ask yourself before taking action against
an employee who has engaged in protected activity:
- Is there a written attendance,
behavioral or performance standard that the employee has
violated?
- What is the company’s actual practice
with respect to such violations?
- How would I treat my best employee if
he or she violated this standard?
- Is the proposed action supported by
policy, practice, and appropriate documentation?
- Would a neutral third party perceive a
relationship between the protected activity and adverse
action?
Set the Stage for
Success
Many retaliation charges can be avoided
through the adoption of disciplinary policies and procedures
that minimize the chances of a hasty or ill-advised
disciplinary action. No supervisor should be allowed
unilateral authority to impose discipline–especially
termination. All such decisions should be made only after
careful review by a higher authority fully knowledgeable about
the employer’s policies and the law.
Supervisors should be required to follow
certain guidelines before imposing discipline:
- Consult with Human Resources and review
existing policies concerning discipline.
- Draft a performance review identifying
the exact problem, with the details of each observed
instance.
- Unless the offense merits immediate
discharge, such as workplace violence, gross
insubordination, theft or dishonesty, give a final written
warning and a specific time by which the employee must
correct the deficiency or face termination.
- If the deadline is not met, contact
Human Resources and get approval to notify the employee that
they are being fired for unsatisfactory
performance.
Before approving the discharge, Human
Resources should insure that:
- All progressive discipline steps have
been completed and documented.
- The employee has been counseled and
assisted regarding performance deficiencies, but there is no
realistic expectation for satisfactory
performance.
- Alternatives (transfer or retraining)
are ruled out.
- Termination recommendation and
supporting documents have been submitted to Human
Resources.
- Human Resources Director or other
designated manager has authorized discharge in
writing.
- Written notice of termination has been
given to the employee, along with any required notices
(COBRA, ERISA, etc.).
- Payroll has been notified of the
termination.
- All company property has been
retrieved.
- All records have been delivered to
Human Resources for retention.
Train Your
Managers
Your managers probably have a pretty good
understanding of harassment and discrimination laws. But
do they understand the nonlegal issues that are most likely to
turn an internal complaint into a lawsuit? Supervisory
training for managers should not only cover the legal
responsibilities; it should shed some light on the perspective
of the complainant, the unintentional mistakes that can be
perceived as retaliation, and specific guidelines for handling
the complainant during and after an investigation.
For example, supervisors should:
Do’s
- Act as though nothing is
different. If an employee tests the supervisor by
asking the supervisor’s awareness of the complaint, indicate
that the organization respects the employees’ right to file
a complaint.
- Reassure the employee that the charge
will not affect their working relationship with the
company. Encourage them to come forward if they feel
like they are treated unfairly and you will assist them in
working the problem out.
- Avoid being drawn into any kind of
discussion about the complaint or its validity. If the
complainant asks you about it, stress that it is your
position and the company’s that any one has the right to
complain about unfair treatment and such complaints will not
affect their status in any way.
- Remain neutral.
Don’ts
- Don’t give the employee a bad
performance review after the charge is filed when previous
evaluations were good. If performance has
deteriorated, write a complete explanation of how it has
changed.
- Don’t assign more unfavorable tasks or
duties than was normal for the employee prior to the charge,
or than are currently normal for other employees. Keep
the employee’s job the same less they complain about having
to do a disproportionate share of the undesirable
work.
- Don’t deny a promotion for which the
employee was in line. Supervisors sometimes think
there is no way to prove that the denial of a promotion is
connected with the earlier complaint. But the fact is
it can be proven in a number of ways: by comments the
supervisor has made to the employee before the charge was
filed; past promises of raises or promotion; statements to
the employee upon being hired; a pattern of positive
documentation.
- Don’t refuse to communicate with the
employee. Avoiding normal contact can be
construed as retaliation even if the supervisor is avoiding
the complainant because of the feeling that ‘anything I say
might get me in trouble.
- Don’t increase supervision unless you
can document good reasons for doing so.
- Don’t suddenly enforce work rules that
have been previously ignored or loosely
enforced.
The Bottom
Line
U.S. poet Nikki Giovanni once said,
“Mistakes are a fact of life. It is the response to
error that counts.” As a human resource professional,
you play a critical role not only in facilitating prompt,
thorough and fair complaint procedures, but in insuring that
your managers have the necessary skills to effectively mentor,
coach, counsel and discipline their employees. It is
through this combination of fair investigation techniques and
emotionally intelligent managers that employers will have
their best opportunity to salvage employees whose problems can
be remedied and of successfully defending themselves from
employee retaliation claims.
NEED A SPEAKER FOR YOUR HR AUDIENCE? CONTACT DR.
JOHNSTON
TO SPEAK TO YOUR GROUP!
Dr. Joni Johnston, author of The Complete
Idiot's Guide to
Psychology, is a popular speaker who
speaks to national human
resource audiences on such timely
topics as "How to Turn Employment
Liability into Employee
Retention," "The Psychological Road From
Employee to
Plaintiff: How to Avoid Wrongful Termination Lawsuits,"
and "Dealing With Psychiatric Disabilities at Work."
To contact her to speak to your group,
e-mail
jonij@workrelationships.com.
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