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Mismatches between employers' written policies and their actual practices in disciplining employees or responding to harassment and discrimination complaints draw plaintiffs' attorneys like flies to honey, according to an exemplar of the breed.
“In my experience, juries tend to believe what is written,” Whitney Warner of Moody & Warner, P.C., Albuquerque, N.M., said June 18 at the Society for Human Resource Management annual conference in Chicago. “If you've got a practice different from what your written policy is, you need to change your policy to match your practice.”
If an employer that didn't follow its own written policies is sued, it can be in trouble, Warner noted. An employee who senses she's about to be fired will often study her employer's written policies carefully and make note if they aren't being followed, she said..
Warner offered a smorgasbord of acts of commission and acts of omission that can trigger an employee lawsuit or worsen an employer's position if one is filed. Topping the list is not giving a reason for a termination. Even though this is legal for an at-will employee and some lawyers even advise not giving a reason, “this is the number one thing that will make an employee file a claim and call my office,” Warner said.
The trouble is that the employee's first reaction in this situation is that the firing isn't fair and must be a cover for discrimination. A bland written statement that the employer doesn't need the employee's services anymore “is my Exhibit A to the jury,” Warner added.
It's even worse if the stated reason for the termination changes over time, she added. Employers should be especially cautious in unemployment hearing testimony, as this “is often pre-employment litigation.” If the fired employee's supervisor isn't well prepared in this hearing and gives only one reason for the termination, it's a problem for the company to add the other reasons later because it looks like the justification is changing.
Worse yet is when the stated reason for the termination is contradicted by objective evidence: for example, if a salesperson is fired for bad sales performance when she was in the top three salespeople out of 20 for the territory.
Another major part of Warner's law practice comes from employers failing to respond or responding wrongly to harassment and discrimination complaints from employees. An employer courts punitive damages by a lack of response to such complaints, which “looks like utter indifference,” she said. But here too, it's vital for the employer to follow its own written policies. “You don't want your case to rest on the credibility of a supervisor at trial,” Warner said.
Employers raise their risk of being sued if a high-ranking manager is the bad actor, and the risk is greater if the case in question “is not the first problem with the manager,” and it's even greater if no corrective action was taken, and worse yet if the offending manager was promoted or got a bonus. Juries won't accept as a defense “that you took no action because the manager outranked HR. This is where you hire a third-party investigator,” Warner said.
Lack of an internal investigation can call forth the dogs of litigation, as can dismissal of a harassment complaint against a senior manager on the grounds that “that's just the way he is.” But if an internal investigation is done but is superficial, it adds yet another element of risk, Warner noted.
Specifically, she said, internal investigations fail and add to the litigation risk if:
• The company just asked the harasser what happened “and called it a day”;
• The investigation took too long. It's not advisable for company policy to specify a set amount of time the investigation is supposed to take, Warner cautioned;
• The investigation was not documented;
• Relevant witnesses were not interviewed;
• There was no corrective action, especially if the harasser admitted the alleged conduct;
• The company responded to other complaints more earnestly; or
• The company further offends the employer by the questions it asks of him or her. Warner cited an example from her caseload of a racial discrimination case in which “the n-word was used, and in the internal investigation the employee was asked if he ever used the n-word to refer to his wife and children.”
To avoid a retaliation complaint in cases where an employer wants to discipline an employee who filed a harassment or discrimination complaint, Warner advised that her rule of thumb is, “If you're still thinking about the complaint, it isn't long enough.” Courts around the country are reluctant to set a hard-and-fast rule on timing, she said; but if the discipline follows the complaint by less than a month, the courts will usually send it on to a jury, whereas if it's several months or a year, “they generally want something more than just the timing” as proof from the plaintiff.
Employers shouldn't assume that what the Equal Employment Opportunity Commission chooses to do with a complaint necessarily has any bearing on what a plaintiff's private attorney might do. “I don't really decide whether to take a case based on the EEOC result,” Warner said.
On the other hand, despite many employers' fears and suspicions, most employees aren't automatically litigious, as long as they feel their concerns are sincerely being addressed. “Being responsive to complaints is the number one thing you can do to keep a lawyer from ever, ever, ever being interested,” Warner said.
If a harassment or discrimination suit is filed, candor and empathy from senior corporate management who may not have been aware of the alleged misconduct by lower level managers goes a long way toward mitigating the damage, Warner said.
The trial testimony should be “we messed up, we feel terrible, this is how we fixed it,” she added. Officials may be afraid to express contrition in this setting, but they shouldn't be, she said; such an attitude can help the company avert punitive damages.
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