Small business owners, you may be the most vulnerable to harassment and discrimination suits right now. Why? Because you have employees but aren’t big enough to have a human resources department — and you feel that you are too busy trying to run your business to flesh out every rumor that you hear about employee complaints. This is where you put your business at risk.
Harassment and discrimination are wrong and must be eradicated. Period. But there are some employees who are attempting to use the specter of a harassment claim as job insurance or an unearned payday. This behavior is as egregious as harassment and has to be stopped – which brings me to my mantra:
Sunlight is the best disinfectant.
Coined by U.S. Supreme Court Justice Louis Brandeis, this phrase perfectly captures the way in which small business owners should approach rumors or complaints of harassment. Once on notice of a harassment claim, your business has a duty to investigate the claim, come to some conclusions about the facts, and take actions that are reasonable given the conclusions reached. Legally, in many cases, the way in which your business reacts to the complaint can be as important, or more important, than whether the harassing behavior actually occurred.
What is the takeaway?
If an employee complains about harassing behavior – even informally — have them write down the “who, what, where, when, why and witnesses” of/to their complaint. Calling
competent legal counsel is recommended. Then look into it. Document your efforts. Respond in a way that is reasonable (i.e. by doing nothing further because there was no unlawful harassment; or, if there was problematic behavior, by issuing an oral reprimand, written warning, suspension, reassignment, termination, policy change, etc.). Your legal counsel can help you determine the range of reasonable responses.
Investigating claims of harassment is a win/win/win proposition for your business. If there was a problem, the business can nip it in the bud before it becomes bigger, more time consuming, and more expensive. If there wasn’t a problem, and your employee was trying to set you up, you’ve just largely thwarted their efforts. If the employee is undaunted by your company’s competent responsiveness, and files a claim, you have already laid the cornerstone of your defense.
Sunlight. It’s the best disinfectant.
Council Baradel Employment Law Blog 