Workplace Harassment Reporting Obligations: Know Your Exposure When You Provide Employees With Reporting Responsibilities
You have a policy against harassment, so you're protected against liability unless someone makes a report to management, right? Maybe not. As a recent decision makes clear, policies and procedures must have clear directives regarding to whom reports should be made. Additionally, you must hold your employees to your policies and procedures, i.e., don't allow your employees to act informally and contrary to your written policy – acquiescence to informal conduct potentially becomes the new rule. Employees – both those making and those taking complaints – need to understand their respective responsibilities and roles, or you could find yourself on the hook.
In a recent decision, the U.S. Court of Appeals for the 7th Circuit in Lambert v. Peri Formworks Sys., Inc. ruled that the plaintiff had given sufficient notice of same-sex harassment by complaining to fellow, non-supervisory employees, in part, because these employees held a higher degree authority and had a self-professed responsibly to report "anything that was going wrong" to a yard manager (i.e., to a supervisor/management). The court held that this notice to fellow non-management employees was potentially sufficient (at least sufficient enough to get past summary judgment), because the co-workers could "reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it." The court reached this conclusion despite the undisputed facts that: (a) the employer's handbook had a specific complaint procedure; (b) the fellow employees were not listed in the employer's handbook as individuals to whom reports of harassment must be provided; and (c) the complaint procedure specifically identified the categories of individuals (not the coworkers in this case) to whom reports of harassment should be made. Be advised that employees with even limited reporting responsibilities may create problems for you when they fail to exercise their reporting functions regardless of whether or not they are supervisors, managers or an individual with any supervisory responsibilities.
• DON'T hide behind a written procedure when an employee does not complain to the specific person identified in your employee handbook's complaint procedure – act upon each and every complaint.
• DON'T provide employees with harassment or discrimination reporting responsibilities unless you train then on what such a responsibility means and obligates them to do.
• DO have a written complaint procedure.
• DO train all of your employees (management and non-management) on your company's complaint procedures.
• DO provide employees with multiple avenues through which to make harassment or discrimination reports/complaints.
• Ultimately, it is recommended that you train your managers, supervisors, human resources personnel and all personnel that you provide reporting responsibilities on the appropriate means, manner and method of handling complaints of harassment and/or discrimination – or, better yet set up a policy (and train managers and supervisors on the same) that instruct all personnel to refer such questions, complaints and inquiries to human resources.
Please contact Paul Sweeney at (317) 236-5894 or firstname.lastname@example.org, or another member of Ice Miller LLP's Labor and Employment Practice Group if you have any questions regarding this article.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.