The law holds employers to an even higher standard of care when it comes to employment harassment complaints about employees with supervisory authority than it does when the complained of harassment is done by someone who is not a supervisor. Yet, it is often the case that the higher up an employee works in an organization, the more difficult it is for HR and other management employees to confront and discipline that employee when he or she screws up.
When a complaint comes in about a senior manager or officer, here are some practical steps a company can take to make sure the situation is handled with both the political sensitivity that may be required and also the appropriate degree of attention with respect to the discipline that should be meted out:
- Bring in an independent, third-party investigator without ties to upper managers. This person will not be inhibited by office politics. This person's report will also be less subject to attack — on cross-examination by the employee's lawyer or by the EEOC — than an investigator who is beholden to the accused harasser for a raise, bonus, or promotion.
- Have the third-party investigator create a report outlining the investigation, the findings, and recommendations for any discipline that may be warranted for higher management employees. If it was found that the president of the company did indeed make those very naughty sexual remarks to the receptionist, then strong disciplinary action should take place. It will be easier to carry this out if the recommendation comes from a third party. Of course, failure to follow the independent investigator's written recommendations could have their own negative consequences as well.
- During trainings with upper managers about the no harassment policy, be sure to talk about the investigation process. Let the higher-ups know that they too are subject to investigation and that, though it may be uncomfortable for everyone, once the company finds out about a complaint, it will have no choice but to investigate.
- Make sure upper level managers and officers get training on the fact that information technology — such as computers, internet access, and phone systems — belongs to the company and is always subject to search by the IT department. An executive's BlackBerry is not immune from search.
- Be proactive with sensitivity and diversity training for senior management. Letting them know in advance what is expected of them — and how their actions can be highly damaging to the company to the tune of hundreds of thousands of dollars — can prepare them for why the company is responding in a particular way to an employee's complaint.
About the Author
Jack Lord is a partner with Foley & Lardner's Orlando office and a member of the firm's Labor and Employment Practice. He has been certified by the Florida Bar as a specialist in Labor and Employment Law. Mr. Lord works with private and public employers in matters involving employment-discrimination litigation, labor issues, and general labor and employment law advice. He can be reached at 407-244-3246 or at email@example.com.