Immediate Response Doesn't Always Negate Liability!
Scenario: An employee is being harassed and subjected to a very hostile work environment due to the behavior of the employee’s supervisor. The behavior of the supervisor is so egregious that everyone knows what’s going on. The supervisor openly humiliates the employee in front of other staff, has been seen shoving and encroaching on the personal space of the employee, has falsely and intentionally accused the employee of mistakes made by other staff, has stripped the employee of many assignments, has asked the employee to perform menial and non-work related tasks, like cleaning, etc. Members of management have seen or heard about the mistreatment because the misconduct is happening out in the open. But, no one does anything!
Finally, the employee can’t take the abuse anymore and goes to HR to complain about the supervisor’s behavior. HR takes quick action against the supervisor. For instance, they demote him and require him to go to sensitivity training.
Question: Is that response good enough to resolve the situation?
Answer: Maybe not!
Even though the company quickly responded to the complaint and took action against the supervisor, the problem is that they waited for the employee to complain about mistreatment before they did anything about it.
According to a decision in Dees v. Johnson Controls World Services, Inc., 168 F. 3d 417, 422 (11th Cir. 1999):
“… [an] employer can be held liable despite its immediate and appropriate corrective action in response to a harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action.”
The bottom line is that Federal law does not require that an employee complain about mistreatment because some employees may have a reasonable fear of complaining out of fear of retaliation, etc. For instance if they saw another employee mistreated after complaining of workplace abuse, it would be reasonable to remain quiet, while experiencing mistreatment. So, legally, there is a hope that employees complain about illegal mistreatment, but there is some flexibility on this.
Also, all members of management and authority in a company have an unwritten requirement to report workplace abuse of employees, if they have knowledge of potential misconduct (e.g., witnessing it or overhearing conversations about it, etc.).
So, an employer can’t just sit on its hands and wait for employees to complain about a problem coworker or manager before taking action against the offending person. They can fire an offending employee, but if they knew what was happening and allowed misconduct to continue, they may be legally liable for damages, etc. that occurred, while they did nothing to correct the abuse.
Finally, the employee can’t take the abuse anymore and goes to HR to complain about the supervisor’s behavior. HR takes quick action against the supervisor. For instance, they demote him and require him to go to sensitivity training.
Question: Is that response good enough to resolve the situation?
Answer: Maybe not!
Even though the company quickly responded to the complaint and took action against the supervisor, the problem is that they waited for the employee to complain about mistreatment before they did anything about it.
According to a decision in Dees v. Johnson Controls World Services, Inc., 168 F. 3d 417, 422 (11th Cir. 1999):
“… [an] employer can be held liable despite its immediate and appropriate corrective action in response to a harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action.”
The bottom line is that Federal law does not require that an employee complain about mistreatment because some employees may have a reasonable fear of complaining out of fear of retaliation, etc. For instance if they saw another employee mistreated after complaining of workplace abuse, it would be reasonable to remain quiet, while experiencing mistreatment. So, legally, there is a hope that employees complain about illegal mistreatment, but there is some flexibility on this.
Also, all members of management and authority in a company have an unwritten requirement to report workplace abuse of employees, if they have knowledge of potential misconduct (e.g., witnessing it or overhearing conversations about it, etc.).
So, an employer can’t just sit on its hands and wait for employees to complain about a problem coworker or manager before taking action against the offending person. They can fire an offending employee, but if they knew what was happening and allowed misconduct to continue, they may be legally liable for damages, etc. that occurred, while they did nothing to correct the abuse.
Labels: adverse action, corrective action, employment action, false allegations, harassment, hostile work environment, legal decisions, liability/damages, preventative measures, supervisor
posted by S. Mary Wills at 12:43 PM
1 Comments:
Hi.
Discovered your blog in researching workplace hostility. I'm in a situation involving work at a HUGE corporate conglomerate - but as a freelancer, not a salaried employee. I don't know my rights & have essentially been dealing with workplace harassment for 6 months.
There was what I'll call for lack of a better term a "verbal incident", which occurred almost two weeks ago (tomorrow), involving myself & this person. As I'm a freelancer, he's not technically "my boss", nor is he my "supervisor", but is the Manager on premise & is the only on-site person at this location - making coordinating & working with him unavoidable.
On every occasion where I'd worked on premises alone with him & he harassed me, I text messaged my supervisor to let him know. So, I have a record of this going on for months. My direct supervisor eventually asked if I wanted to file a "formal complaint", but quickly added that it would, "open a can of worms". The insinuation was clear. So, I said "no" & furthered that I wished to cause "no trouble & could handle it, as I didn't have to work with him everyday".
As a freelancer, my job depends solely on good relationships with clients. NOBODY wants to work with a "trouble-maker" - this is the nail in the coffin, as far as freelancers are concerned.
Additionally, I had expensive equipment (pertaining to my job) stolen from the premises on TWO occasions. The first was reported to the company, the second, I didn't even bother, as they did nothing to "right" the first theft - instead, leaving me to file a report at the local police station myself.
The equipment was never recovered & to this day, the matter has not been mentioned, nor rectified. It doesn't take a genius to figure out who the thief "may" have been. I believe this was the first attempt of the "harasser" to try & get me to just "go away".
After months of suffering through his overt hostile exchanges with me, I brought a digital recorder & captured his volatile "interaction" with me. Absently, I then left said recorder in an open area (for about 1 minute) & when in realizing this, I went to retrieve it, it had "disappeared". When directly telling him I'd left my recorder in this area & when I pointedly asked if he'd SEEN it, he stated, "I didn't TOUCH anything."
I then replied, "That's interesting, as we're the only two people here, I just can't imagine where it would be. I’ll have another look around, but if I can't find it, something will have to be done." He responded to me by turning his back and would no longer acknowledge, nor speak to me.
It didn't take long to guess why, because, before I knew it, our superior was on location, with my recorder miraculously re-appearing - in her hand. She returned it to me & stated, "He said you were trying to record him." To which I replied, "Really? I record a lot of things." I should have said, "Ok, let's listen to this alleged recording.” right then-and-there, but was completely stunned. She said she thought, "We should call it a day" and asked me to leave the premises. She did so while standing present until I did so & said she’d,"be in contact to clarify this matter", after speaking to her boss.
She never once asked me what was going on, nor for my "side" of a story. There was no opportunity offered for me to do so, yet she was going to the "top brass" to report...what? With what? Information he provided? I'm not a detective, but I'd guess it would be to figure out how to cover their rear ends in a situation like this. One in which I told her, "I've never had to deal with in my working career", to which she replied, "Neither have I".
Upon leaving the premises, I decided to listen to the digital files - except, I couldn't because they were gone! He'd erased ALL of my files, save three useless "test message" recordings. He'd stolen my recorder (as I wholly believe he did my other equipment), lied about it & this time, as he knew he was "caught", erased damming evidence of his harassment. Not only that, but he also deleted other intellectual property (I had other work-related files there)!
I quickly sent our supervisor an e-mail from my Palm, cc:ing my immediate supervisor, letting them know my files had been erased & stating I would like "nothing better than to rectify this matter."
This situation will have occurred two weeks ago, tomorrow. I've not been called for work and have indeed heard nothing - from no one.
It appears I've lost my freelance career, as this was the only company with whom I have work & am devastated. It seems they're hoping I "simply disappear".
I should explain that I am not "black", but am a woman & the harasser is a "Latino" man who worked in HR at the company for many years prior to securing this new position - one for which I trained him.
Having been in HR, you will understand fully when I share with you that ALL of his harassment took place very carefully & was coldly calculated. I.E.: He left no "evidence", instead, making sure he never harassed me in front of others. I pretended not to notice for a very long time & was indeed instructed to "ignore him" by my supervisor. Instead, opting to remain professional, even while being asked to leave work in the middle of the day, after I was stolen from & harassed.
I brought the recorder in, because after telling friends & family about the stressful situation, I was advised to do so & thought it "couldn't hurt". I wanted a "back up" as proof of what he was doing & was within my rights - legally - to do so. When he discovered my recorder, he must have completely freaked out.
Isn't what he did by taking my recorder, lying about it, and then destroying files, illegal? At the very least, doesn't the act itself, constitute harassment?
I'm truly sorry to unleash this on you. But, I'm desperate for information & don't now what to do. Believe it or not, you got the "abbreviated" version.
Any information, or knowledge, you feel you might be able to impart would be greatly appreciated. I know you talk about not speaking about harassers in terms of being "bullies'", but this one's a real bully who thought because he knew HR inside-and-out that he could "get away" with bullying & threatening behavior. He most likely has been for years.
I know, specifically, that other women in the company have had professional issues with him, but they'd never come forward for fear of losing their jobs. Nobody seems to want to get "involved". Plus, I'm a freelancer, so I don't really count. Unfortunately, this is the impression I'm getting, but know I must have some legal rights?!?
Signed,
Desperate Freelancer in need of sound advice.
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