February 1, 2002
Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.
AN EASY, EFFECTIVE PREVENTIVE LAW TECHNIQUE:
COMPLAINT PROCEDURES FOR DISCRIMINATION
AND HARASSMENT CLAIMS
A crucial strategy in preventing employee harassment claims, particularly sexual harassment claims, is this: Set up a complaint procedure that complies with the law. If you do, and if an employee fails to use it, the employee's claim will generally be dismissed, whether or not the employee was actually harassed.
Georgia Woods worked for Delta Beverage as a telephone sales clerk. Woods alleged that a fellow employee, Gary Eddy, sexually harassed her on a daily basis. Woods complained, and Delta Beverage's district managers investigated the complaint. They informed Eddy that his conduct was inappropriate and would result in termination if it continued. They then told Woods that she should notify them immediately if Eddy engaged in further improper conduct. One of the district managers followed up with Woods thereafter to make sure that she was satisfied with the investigation and disposition.
After two more weeks, Woods stopped reporting to work and, eventually, she filed suit against Delta Beverage, claiming that during the two-week period after the initial investigation, Eddy continued to sexually harass her. She claimed that she was forced to work in a hostile environment, and she had no choice but to leave, for her own well-being. For purposes of argument, the court was willing to assume that Eddy continued to harass Woods in the two weeks previous to her departure. But the court then ruled as follows, in language that every employer must take to heart:
Even so, Delta Beverage cannot be held liable for conduct of which it had no knowledge. Woods had the obligation to report the alleged harassment to Delta Beverage as she had been instructed. Her failure to do so is fatal to her case.
Delta Beverage would not have prevailed unless it clearly instructed Woods respecting its complaint procedure. In many cases, however, the harassed employee will deny that he or she was ever made aware of the existence of a complaint procedure. For that reason, the best solution is always to create a written complaint procedure that satisfies the law - the United States Supreme Court, and other courts, have set forth the specific features that must be included in such a procedure, and specific guidelines on how the procedure has to be implemented. Once you do that, your employee will be hard pressed to plead the "I didn't know" defense.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
