For Employers in the #MeToo Era: It’s Not the Harassment Claim, It’s the Retaliation Claim that Gets You
The era of #MeToo has caused employers to hyper-focus on harassment claims. They have fine-tuned their policies, investigated claims more carefully, and acted swiftly and sometimes even in a draconian fashion upon finding any level of harassment. In most situations, these actions can effectively eliminate an employee’s viable claims of harassment. We are seeing this repeatedly in EEOC charges and lawsuits. The harassment claim is essentially DOA because the employer did a great job and took all the right steps. Unfortunately, that is not the end of the story in many cases.
For many employers, it’s not the harassment claim that gets you or, for that matter, the discrimination claim or the employee leave. What gets you is the retaliation claim that follows. After addressing the claim, employers often let down their guard, close the file, and move on to the next issue. If you terminated the alleged harasser, the matter should be over—right? If the investigation was inconclusive, but you separated the parties, the situation should be resolved—right? Often, the trouble is only beginning.
Protection from Retaliation for Protected Activity
Employees who complain of harassment are immediately cloaked in the robe of protected activity and shielded from any adverse treatment for having reported illegal conduct. Not only is that the law, but undeniably that is how it should be. No employer should retaliate against an employee for lodging a good faith allegation of harassment. Unfortunately, however, the prohibition of retaliation can sometimes make it difficult to address poor performance or bad behavior. The protection becomes a weapon, not a shield, for such employees.
Fortunately, there are some steps employers can take to prevent turning a textbook harassment investigation into a checkbook retaliation claim.
1. Document Your Reasons
If as a result of your investigation you are moving the complaining party to another location or shift to avoid contact with the alleged harasser, document why you did it. Protected employees often complain that they were the ones who were harassed and yet they are the ones who were forced to move shifts or jobs. Usually there is a very good reason for the decision, but rarely is it documented and even less rarely is it explained to the employee and documented. Ask the employee to acknowledge in writing the options you offered and the choice he or she made. If the employee refuses to move shifts, document why you cannot move the alleged harasser and have the protected employee acknowledge the decision not to move.
2. Designate a Person to Take Follow-Up Concerns
As part of the investigation closure process, give the protected employee clear direction about who she (or he) should contact about any issues or concerns. Often employers will recite in writing that there will be no retaliation, but they do not specify what the employee should do if there is real or perceived retaliation and they don’t follow up. Tell the employee to bring any alleged retaliation to the company’s attention immediately. The designated person should be someone who can address it. Not the employee’s immediate supervisor, but someone who is trained in addressing these types of claims, such as the director of human resources. You should also follow up to simply ask the employee how things are going and document that you did so and that the employee raised no concerns. If the employee complains, address the issue and document it.
3. Take Your Time if You Have to Discipline or Terminate an Employee Who Complained
As much as it may pain you to do so, and regardless of pressure from the employee’s supervisor to take some action, give yourself extra cushion before you discipline or terminate an employee who has complained of harassment. This is particularly true if the employee’s file was clear of disciplinary action prior to the harassment complaint. Former employees routinely allege that the company began scrutinizing them after they reported harassment as evidenced by the sudden appearance of disciplinary actions in their file. Again, any significant disciplinary action should be reviewed by someone above the supervisor level, such as the director of human resources, before being finalized. In situations where the employee was in line for termination prior to the harassment complaint, but you had not yet gotten around to finalizing the termination (which happens more than you might think), determine if there is a clear paper trail establishing that the decision to terminate was final prior to the harassment complaint. If not, you might want to reconsider the decision. Without documentation, the argument that the termination was in the works can be a difficult burden for an employer facing a retaliation charge.
Whatever you do, don’t allow a prompt, effective harassment investigation to become a slow, expensive retaliation claim.