Effort in harassment investigations is IMPORTANT

by Michael Haberman on September 11, 2012 · 3 comments

In a case decided by the U.S. Court of Appeals Chrysler lost a lot of money. The case was a pretty hairy one involving harassment of a racial, sexual and religious nature with and unknown harasser.  One of the factors the court used in making its decision was the perceived amount of effort by the Chrysler HR department. The court said effort was important.

The Facts

The case involved an employee who, over the course of several years, received written harassment, graffiti harassment, death threats, vandalized cars, and other property damage. He reported this to company management, the police and the Anti-defamation league. The company did investigate, even bringing in a handwriting expert to try to analyze the notes. However, responses were slow and corporate did not even know about this case until they received a letter from the Anti-defamation league. The handwriting analysis was inconclusive. Surveillance did not reveal any perpetrator. The company brought a psychologist in to interview the employee. The police asked the employee for names of people he thought might be involved. Two were employees who had expressed some biases in the past and one was someone with whom the employee had had some difficulty.

The company did conduct training, did re-emphasize the company policy and did assign an HR person to handle all reports. The HR person also reviewed all gate records whenever an incident occurred. Based on this information one might be inclined to think the company was doing what it could. However, this was not the view of the court.

There is a much more complete explanation here.

The mistakes

Here are the things that the court did not find favorable to the company.

  • The company was too slow to respond to the complaints.
  • The company did not promptly remove the graffiti.
  • The HR person was married to one of the prime suspects.
  • The company moved its investigation to consider the employee the prime suspect, thus showing some hostility to the company.
  • The prime suspects were never interviewed.

As a result of these mistakes and the period of time this took place the courts sided with employee and eventually awarded him back pay and punitive damages to the tune of $3.5 million.

The “take away” for employers

There are several lessons for every employer in this story. The prime lesson is that harassment by an unknown perpetrator is one of the most difficult situations you will ever have to deal with. That difficulty however is no reason to be lax on your efforts. You must:

  • Investigate
  • Reinforce the policy
  • Gather evidence, including notes and handwriting samples
  • Provide surveillance
  • Remove offending public displays, such as graffiti, after it has been documented
  • Get outside authorities involved as needed
  • Be aware of conflicts of interest

And you must do all of this on a timely, very timely, basis.

Robin Shea of Costangy, Brooks & Smith, wrote several other suggestions in her analysis of this case, An employer’s nightmare: the anonymous harasser. I would suggest strongly your read this as well.

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