The Dec. 18 issue of Part B News covers a recent retaliation judgment against a medical practice on behalf of an employee who charged discrimination, and how an accessible reporting protocol can help avoid such a result in your practice. Consider further thoughts on that from Melissa Scott, an associate with the Nelson Mullins firm in Ft. Lauderdale, Fla.
Employers are responsible for acts of discrimination and harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless the employer can show that it exercised reasonable care to prevent and promptly correct such behavior, and the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided.
Therefore, a best practices approach for handling employee complaints should include, at a minimum, (1) a sufficient anti-discrimination/harassment policy; (2) a prompt investigation procedure; and (3) effective prevention training of staff and employees.
Policy: Employers should publish and implement a written anti-discrimination/harassment policy in the workplace and disseminate the policy to all employees. This policy should define and identify the proscribed conduct and advise employees of their rights and obligations with respect to identifying and preventing discrimination or harassment in the workplace. Further, the policy should provide assurances that employees who make complaints or provide information related to such complaints will be protected from retaliation.
The policy should contain reporting procedures for employees to make complaints that discuss how and to whom employees should report unlawful conduct. Significantly, such reporting procedures should provide several individuals to whom a complaint may be made, so that there are assurances that a harassing supervisor can be bypassed in the complaint process. An employer should review and update its written policy for compliance with Equal Employment Opportunity Commission guidelines, as well as differing state and local law standards. Employers should distribute the policy to all human resources staff, supervisors and employees, and require all employees to acknowledge in writing that they received the policy and are aware of the reporting procedures.
Procedure: Employers should also have an investigation procedure in place to promptly investigate and document any complaint of discrimination or harassment. Employers should maintain good record-keeping of the complaint, investigation efforts and prompt corrective action. This may include dated and documented interviews with the complaining employee and witnesses, and records of all steps taken by the employer to correct and prevent the harassment. The complaining employee should be informed to notify the employer immediately if any retaliation or further harassment/discrimination continues, and supervisory staff should also be informed that any retaliation is prohibited.
Prevention: Finally, employers should provide reinforced training to its management personnel and employees to recognize and report unlawful conduct in the workplace. The training should inform employees of their rights and responsibilities regarding workplace harassment and protection from retaliation for reporting such conduct. The prevention training may also advise employees how to identify situations where harassment may not be present but could escalate to unlawful conduct, such as inappropriate jokes, comments or other behavior that may become harassment.
Employers should train all management and supervisory staff on its specific complaint and investigation procedures to ensure that such procedures are implemented and enforced company-wide, to the extent practicable. Training should be tailored to the specific workplace and workforce, routinely evaluated by participants, and revised as necessary.