ALEXANDRIA, Va. — Barely a day has gone by in the last few months when a new public figure hasn’t been accused of engaging in sexual harassment.
These accusations are coming to light because of a movement known as #metoo. The public movement is exposing disturbing activity and is making its presence felt in the workplace.
Laundry and linen service providers need to take action now to protect employees and the company from this type of activity. Sexual harassment claims are costly, time-consuming and embarrassing.
Joe Shelton, a partner in the Atlanta office of the Fisher Phillips law firm, recently presented a five-step plan to help avoid harassment claims in a webinar titled Sexual Harassment—An Old Problem Under a New Spotlight, presented by TRSA, the association for linen, uniform and facility services.
Last time, up-to-date policies, dissemination of policies and training for managers were covered. The conclusion today covers prompt investigation of complaints and consistent enforcement of policies.
PROMPT INVESTIGATION OF COMPLAINTS
If and when a sexual harassment complaint is raised, Shelton says that the company needs to promptly investigate it—take immediate action.
“I know you’re busy, pulling your hair out, putting out fires, but the reality is these types of complaints, you just can’t afford to set them to the side to be dealt with in a couple days,” he cautions. “Delays could send the wrong signal, and they will be exploited in any subsequent legal proceedings.
“It’s absolutely something that the plaintiff’s attorneys will grab hold of, and you won’t enjoy the deposition that you have and the squirming that you’ll feel when the plaintiff’s attorney is grilling you for not jumping on it immediately.”
When it comes to acting on issues raised and conducting an investigation, Shelton says human resources (H.R.) representatives should take the lead. The company needs to have someone take the lead who really knows what they’re doing, understanding what the process is related to sexual harassment and is sensitive to the various issues.
However, he cautions that there isn’t an investigation template that can be used in every situation.
“This is an area where you’re going to have to really be in tune to what you’re hearing and seeing and taking the investigation wherever it leads and do a variety of things based on what you’re hearing and seeing,” advises Shelton.
There are, however, some “best practices” that can be helpful in conducting an investigation. First, try to obtain a written statement from the victim. If the person complaining does not want to write a statement, he says to take notes and have the complainant initial those notes.
“There are a couple reasons to want a written report,” explains Shelton. “Getting it in writing helps you in where you need to go with your investigation. The lawyer wants that written report because if this turns into a lawsuit, experience tells me that somebody’s original complaint gets warped by the time we have litigation when it’s not in writing.”
Throughout the investigative process, he says the person investigating should take detailed notes—and be prepared for them to be an exhibit one day in a lawsuit.
“That may scare you, but I can assure you that your notes are going to be a positive when we have to defend that lawsuit,” says Shelton. “Please do not, if you’re like me and can barely read your own handwriting, if you ever convert your notes or type them up, never ditch or throw away your original notes. Still keep them; it’s important.”
Next, he says to interview all relevant witnesses. However, if the person says there weren’t any witnesses to the behavior about which they are complaining, Shelton recommends inquiring further into the situation. Did they tell anybody, go to anybody, a co-worker? If so, go talk to that person.
“Even if they say there were no witnesses, you still should consider who you might talk to,” he says. “For example, if a female employee complains about her supervisor saying or doing inappropriate things, of course you’re going to talk to the accused, but you might consider, if there are other females in the department, talking to them, seeing if they’ve experienced anything, even ask if they’ve seen anything, even if the person complaining didn’t think there were any witnesses.”
Shelton then says a company should obtain all the evidence possible before concluding the investigation.
“In today’s world, there are so many places where you could find potential evidence,” he observes. “E-mails, texts, any kind of documents. Of course, ask the person complaining if there is any documentation that could be relevant. Even if they say there isn’t, and you know that the person complaining e-mails with the person that they’re accusing, you still want to look at those e-mails. You never know what you might find.”
Shelton says that during this process, the company has to take reasonable steps to separate the accused and the victim.
“You need to be mindful that you are not putting the victim in a position where they have to work with the person they accused,” he says. “Sometimes that’s difficult, sometimes that’s easy. That gets back to the urgency of jumping on these things. Sometimes when you’re separating them, it does create a problem for your business, but that will further motivate you to act promptly in all this.”
Finally, Shelton says don’t ignore older complaints that arise. Look into complaints about activity that took place previously, even years ago.
“In the #metoo movement, these are new complaints about old, inappropriate behavior,” he says. “‘You mean, if someone waited five years to complain about it, I’ve still got to look into it?’ Yes, if that person, the accused, is still at your workplace. I would say to you, if somebody complains to you about something, even if it happened years ago, and you find evidence that it occurred and it was serious enough to cost them their job at the time if it came to your attention, to me, it should still cost them their job now. In my mind, they don’t get off scot-free just because the person didn’t come forward.
“We know there are countless reasons why people don’t come forward.”
ENFORCEMENT
The last step of Shelton’s five-step plan to avoid harassment claims is for a laundry and linen service to consistently enforce its policies. Also, take action that’s sufficient to ensure the offending behavior is not reasonably likely to occur again.
These disciplinary actions can include a verbal warning, a written warning, professionalism training and a performance plan, up to suspension, demotion and termination.
“I made this point earlier, but don’t go easy on high-performing or high-ranking employees just because they’re so important to your organization,” Shelton stresses.
The #metoo movement isn’t going away, he says, nor should it. Lives and businesses have been ruined by sexual harassment. Taking action now will help protect employees and the company.
“Professionalism leads to higher productivity,” Shelton points out. “There has been study after study that professional work environments that don’t have these shenanigans going on are higher productive work environments.”
Miss Part 1 on up-to-date policies, dissemination of policies and training for managers? Click here to read it.
Information in this article is provided for educational and reference purposes only. It is not intended to provide specific advice or individual recommendations. Consult an attorney for advice regarding your particular situation.
For information on upcoming TRSA webinars, visit www.trsa.org/events/webinars.
Have a question or comment? E-mail our editor Matt Poe at [email protected].