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What’s The Solution?
So what do you do? Even the courts recognize that it is often difficult to control the actions of those who do not work for you. And from a non-legal, business viewpoint, there are obvious issues to be confronted when the source of the harassment is a valuable customer. Nevertheless, these cases are becoming commonplace, and employees are winning verdicts.
Here’s our prescription for minimizing the dangers.
1. Set up a complaint procedure for non-employee harassment. Here’s where a policy manual, though by no means a cure-all, can help you. You should already have in place a policy manual that tells employees what sexual harassment is, and tells them how and to whom they should report instances of harassment. (If you don’t, stop reading this article, call us immediately, and find some applicable employment practices liability insurance.) Make sure the manual defines sexual harassment (and, indeed, workplace harassment in general) to include harassment by non-employees. Why? This puts the burden on the employee to tell you about the harassment so you can investigate and respond. If, in the face of this policy provision, an employee harassed by a non-employee remains mute, and then sues, and if you did not otherwise have reason to know of the harassment, you’ll have a viable defense to the claim – you told the employee to report it, you advised the employee how to report it, and the employee did not do so.
2. Train your managers to recognize and respond to non-employee harassment. One of the worst things that can happen to an employer in a sexual harassment case is this: the employee reports the harassment to a manager; the manager does nothing; and the employee proves that the employer never trained the manager to do what was necessary to prevent or respond to the harassment.
If that is a risk in your company, prepare yourself to sit at the defense table and look sympathetic while your employee’s lawyer makes the following, impassioned jury speech:
Ladies and gentleman, the law, to say nothing of common decency, says that companies must protect their employees from workplace dangers. Companies have to take reasonable steps to protect employees from explosions and chemical spills. But their responsibility does not end there. As we all know, sometimes emotional injuries can be more devastating than physical injuries. In a decent society, companies have to protect their employees from that kind of harm as well.
Sometimes employers try their best to protect their employees, and the employees still get hurt. Sometimes there are dangers that could not be foreseen. You can’t blame an employer for that. But what if an employer knew of a danger – actually knew about it – and then turned a blind eye to it, doing nothing to keep the employee from getting hurt? What if a company knew about the risk of an explosion or a chemical spill, and just let it happen, because it was too much trouble to do something about it? You would punish that company, wouldn’t you?
Well that’s exactly what happened here. This company, like all companies, knew about the dangers of sexual harassment. And yet it didn’t do one thing to prevent it from happening. The least, the very least it could have done was give its managers some training on recognizing and preventing sexual harassment – just like any responsible company would train its managers to recognize and prevent potential explosions or chemical spills in a factory. But all this company did is put some meaningless words in a manual, and then leave its employees to fend for themselves.
Now that would have been bad enough. But in this case, one of the employees was actually in harm’s way, and she told the manager, the company’s representative, about the problem. This wasn’t a situation where we might argue over whether the company had any reason to know that something might hurt her. The company actually knew that she was in the process of being hurt. She asked her manager to protect her in some way. And he did nothing – not one thing.
We should all be outraged at the manager. But we should be even more outraged at the company. It never took the trouble to train that manager on what he was supposed to do once an employee was in danger. It wouldn’t have taken much – a couple hours of professional training so he would know what to do. But that was too much trouble for this company. They preferred to risk the welfare of their employees in order to save a few bucks and a few hours .
The next time, it may be your daughter, or your mother, or your friend, or your wife or yourself who’s at risk. It’s up to you to tell this company, and the business community at large, whether or not they can get away with this. It’s time to take the profit out of this kind of corporate irresponsibility. I urge you to send a message that is unmistakable, and unforgettable.
3. Take your employee out of harm’s way. A basic precept in any sexual harassment situation is this: once you have reason to suspect that an employee is being harassed, use all reasonable efforts to remove the employee from the harasser (at least until a proper investigation documents that there is insufficient basis for the harassment allegation), without prejudicing the employee’s position or standing in the company.
In a situation where there is no time to investigate – the waitress claims she is being harassed by patrons, for instance – that might require nothing more complicated than re-assigning the table, or accompanying the waitress to the table. In a situation where the employee must deal with the harasser/customer, for instance, use creative means to protect the employee without compromising the company’s business relationship with the client or the employee’s job – accompany the employee on all future meetings, or tell the customer that employee was diverted to an emergency situation requiring the employee’s expertise.
4. Investigate the allegation as you would any other allegation of sexual harassment. The law requires that you investigate sexual harassment complaints – the investigation of a sexual harassment complaint must be conducted in accordance with strict procedural requirements. Do not ad lib. If you have not established a compliant procedure or, even better, outsourced responsibility for sexual harassment investigations, do so. For present purposes, remember this: an allegation of sexual harassment by a non-employee must be investigated in the same way as an allegation of sexual harassment by an employee.
5. Beware of the retaliation claim. Here’s what frequently happens in scenarios like those described above. The manager, untrained in the nuances of employment law, tells the employee that she has to do her best, and get back to work. The employee, perhaps after another incident, ultimately refuses. The manager feels backed into a corner, and either disciplines the employee, or fires her.
In those circumstances, the employee is likely to bring a “retaliation claim” – that is, a claim that asserts that her employment position was compromised because she reported a harassment claim. You can avoid such claims by getting the employee out of harm’s way (without demoting or prejudicing the employee’s position in he company) and investigating the claim before taking action, but the reflex reaction of many managers, particularly when a relationship with a customer is implicated, can be problematic.
6. Confront the source of the harassment. As a necessary part of any investigation, you will have to confront the alleged harasser with the fact that an allegation of harassment has been made. That will not be difficult if the alleged harasser is a delivery service, or a restaurant patron, or a minor customer. But if the alleged harasser is, for instance, a substantial account, business reality will require a balancing of interests, and a hefty dose of creative diplomacy.
There are no pat formulas that can be applied. We have helped clients through this on frequent occasions in the past, and it requires a skillful, strategic approach. For instance, in many cases, a “blame the lawyer” approach works. Tell the customer who has asked one of your employees to dinner that the employee felt that her job would be in danger unless she accepted, and that counsel has advised you to ask the customer to back off or you will all risk liability. In other cases, a different approach might be merited. Just don’t ignore it.
7. Document what you did. Recognize that you are in a situation which might explode in your face. As was discussed in the January 2004 issue of Avoiding Lawsuits, it’s not enough to do the right thing; you have to be able to prove you did the right thing.
A common scenario: you discuss the matter with your customer, who assures you that he will make no further aggressive approaches to your employee, and after a week or two he does so anyway. Your employee quits and files suit for sexual harassment, claiming you did nothing to protect her. You assert that you approached the customer, and the customer, now in self-protection mode, “remembers” your conversation with him in a vastly different way. How will you prove that you’re right and they’re wrong?
8. Consider an indemnity agreement. Many companies lease employees from other companies, or they hire a consultant who brings in ten consulting employees to the workplace, or. they hire a contractor to do some work in the office. In each of these instances, there is a risk that the non-employees in the work place will harass the employees in the workplace, leading to lawsuits and liabilities.
Why not protect yourself contractually? Include a provision in the employee leasing, consulting or contracting agreement that requires the other party to defend and indemnify you against any claim which results from the acts of any person they assign to your workplace. Also consider a provision requiring that all outsiders brought into your workplace must comply with your policies, and any violations of such will result in termination of the contract at your option.
It’s never easy. But, our clients tell us, once you attack these issues, it’s not nearly as difficult as it seems. Let us know if we can help.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
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.
