When we conduct our training program for managers in sexual harassment prevention, there is always one uncomfortable point in the session. It is when we advise managers that any time they witness or stop inappropriate behavior, they must write down what happened and who was involved, what they did in response, and then send the information to HR (or put it in an employee’s file). This is our recommendation no matter how minor the infraction and even if doing so makes the supervisor feel like a jerk. We get it. But the problem is that liability may result if there is no record of the corrective action.
Imagine that a manager overhears an employee tell a dirty joke and immediately warns him to knock it off. Not wanting to be “that kind of boss,” the manager is satisfied that he has adequately addressed the behavior and so does nothing further. But he is wrong. On the next occasion, a different manager does the exact same thing and likewise is sure that she has ended the joke-telling. But she, too, is wrong. A third manager ends up in the same spot.
If each of these managers chooses not to write down what they did and send that information to a single repository (like HR), the behavior might continue. By the time the lawsuit is filed, 60 Minutes will be doing a segment on the “Serial Dirty Joke Teller” who terrorized employees for years without any intervention from management.
A case decided by a federal appeals court on February 9, 2017, demonstrated how the well-documented, prompt remedial efforts of supervisors protected an employer in a discrimination case. In a 14-month period, an African-American employee complained of five incidents of an alleged racially hostile work environment. The first complaint was that her team leader had a black voodoo doll with a string around its neck on his belt. The labor relations director told the team leader to never display the voodoo doll again, and he did not. Five weeks later, the employee noticed the letters “NIG” etched onto a control box at her workstation. Her supervisor reported the situation to the Labor Relations Director, and within 48 hours the letters were sanded off the box. Six months later, the letter “N” was etched into the box. The employee reported it to her supervisor and began a three-month leave for anxiety and depression. The Labor Relations Director had the box painted and interviewed 12 employees but did not find the culprit. On her first day back from leave, the employee saw a drawing of a face on a wall with the words “Red Eye” above it. She believed that was a derogatory reference to African-Americans. Although the labor relations director did not believe that “Red Eye” was a racial reference, he had the wall painted. Four months later, the employee saw an etching which she claimed said “NIG” or “bitch,” although her supervisor believed it was random scratches made by a torque gun. The supervisor reported the incident to the labor relations director, who had the area sanded and painted.
The employee sued, claiming that she worked in a racially hostile work environment. The appellate court said that although a jury might have found a racially hostile work environment, it recited the prompt responses of the supervisors and the labor relations director to each incident, including the sanding, painting and investigation as the basis for exonerating the employer from any liability.
This important recent case is a very clear example of how well-trained supervisors who know what to look for—and recognize the need to report each incident to HR (regardless of how minor)—can insulate an employer from liability for hostile work environment and other discrimination claims.
As we always tell the managers we train, it is far better to report and address every complaint, than it is to be a defendant in a hostile work environment case and face a costly and uncertain jury trial.
Kluger and Healey are founding partners in the Kluger Healey employment law firm.