A Lesson in Preventing & Correcting Discrimination

A recent 8th Circuit decision demonstrates the importance of responding investigating and responding to claims of harassment and discrimination.  In Crawford v. BNSF Railway Co., the plaintiffs alleged that their supervisor sexually and racially harassed them on a frequent basis.  The court granted judgment in favor of the employer because the employer was able to show that it acted reasonably to prevent and correct any sexually harassing behavior and the employees failed to take advantage of the preventive and corrective opportunities provided by the employer.

The employer not only distributed its anti-harassment policies but also followed the policies.  The company had counseled the alleged harasser previously about workplace behavior and required him to attend a seminar.  The company had a hotline employees could use to make complaints.  The company investigated each and every complaint it received through the hotline.  Upon notice of the plaintiffs' complaints, the company placed the alleged harasser on administrative leave, investigated the complaints, and terminated the alleged harasser within two weeks.  The court found these facts, coupled with the plaintiffs' failure to take advantage of the complaint process or hotline, granted judgment in favor of the employer.

As an employer, you cannot prevent an employee from asserting a claim, but you can decrease your potential liability by following a few steps:

1.      Adopt and distribute anti-harassment/discrimination policies.  If you don't have any policies that prohibit harassment and discrimination adopt them now.  Make sure your employees know that you have the policies and give them a copy of the policy.

 

2.      Educate your employees.  Ensuring that your employees understand the policy means more than handing it to them on the first day of work.  Hold periodic training with your employees that depicts illegal discrimination or harassment and educate them on the appropriate ways to report potential discrimination or harassment.

 

3.      Investigate all complaints.  When an employee complains of potential discrimination or harassment investigate the complaint.  Do not dismiss a complaint because it doesn't seem valid on its face.  Interview potential witnesses, talk to managers, make a written report.  Obviously, the seriousness of the complaint may warrant a more detailed investigation, but all complaints should be afforded some level of investigation.

 

4.      Take action.  Taking action doesn't always mean discipline or termination.  You may discover that certain employees need additional training or counseling.  Sometimes a complaint cannot be substantiated.  Even in those situations, take action by following-up with the complaining employee and making a written record of your investigation.

Having a proven track record of viewing complaints as serious demonstrates to the court that your company is committed to preventing and correcting discrimination and harassment in the workplace.

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