Hewlett-Packard’s former CEO Mark Hurd recently claimed that he “did not have sex with that woman.” Whether or not he is guilty of the offense, the lawsuit against him and HP Board of Directors cost HP $9 million dollars.
This case should remind us that sexual harassment complaints and the litigation that ensue do arise, no matter who you are and what type of work you are in. There are a number of key internal steps that must be utilized when handling a sexual harassment complaint.
First and foremost, each and every employer should have a sexual harassment and harassment policy in place, whether you have two employees or 2,000. The policy should state clearly that the employer has a zero tolerance policy against sexual harassment, define what kind of conduct constitutes sexual harassment, and provide a detailed outline of the complaint procedure. Furthermore, all employees, including supervisors, should be required to sign the policy indicating that they read and understood the policy. This one page document is important evidence at trial. Without such a policy, opposing counsel will raise that fact at trial.
Second, it is critical that whomever is charged with investigating the complaint document all of the evidence gathered, both orally and in writing. The investigator should be completely non-biased. If a jury perceives that the investigator was biased toward the harasser or toward the victim and intentionally left out key information that was provided by witnesses and the parties, this could prove to be fatal to the defense and potentially lead to an award of punitive damages. If the person investigating the claim is closely associated with either the victim or alleged harasser, the company should have someone else handle the investigation, including potentially retaining outside counsel to handle the investigation. This is particularly the case if the alleged harasser is a high level executive who may be able to fire or punish the person handling the investigation.
Third, it is imperative that you do not retaliate against the victim both during and after the compliant has been investigated. Employers cannot punish employees for making discrimination or harassment complaints or participating in workplace investigations. Punishment does not just mean firing or demotion. It can include other negative employment actions, such as being denied a raise, transfer to a less desirable position, or missing out on training or mentoring opportunities.
The best way to ensure that a termination is not retaliatory is to constantly document poor employee performance from the date of hire. Contemporaneous documentation of poor performance and the consequences of failing to improve the behavior and conform to a company’s standards are crucial in justifying an adverse employment decision. After a review of an employee’s performance, commit the review to a writing and have the employee sign acknowledging the review. If an employee’s performance is so poor that a termination is imminent, the written performance evaluation should specify the problem and set a time frame for improvement.
Kring & Chung is experienced with these complex issues, and can help you position your company to best handle and avoid costly harassment claims.