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Persuading managers to promptly report employee complaints is key, experts say
Want to convince managers to report harassment complaints swiftly?
Show them a video illustrating—in painful detail—what it’s like to sit through a deposition for a harassment lawsuit.
That’s among the training suggestions made by employment law experts now that the U.S. Supreme Court has weighed in on the circumstances under which an employee is a “supervisor” for purposes of vicarious employer liability under the Civil Rights Act of 1964.
“As soon as a manager learns of a potential situation, the manager needs to understand that he or she needs to act promptly,” said Katharine H. Parker, a partner with New York City-based Proskauer Rose, which counsels multinational corporations worldwide on employer policies and training. “If you show them a manager being cross-examined in a deposition or at trial, and being questioned about conduct they did or didn’t do, then it really comes home.”
In its June 24, 2013, ruling in
Vance v. Ball State University, the high court held that a supervisor is someone with authority to take “tangible” employment action, such as hiring, firing, demoting, promoting, transferring or disciplining an employee. The court rejected a broader definition that included the ability and opportunity to direct, oversee or control an employee’s day-to-day work activities.
While the court’s definition of “supervisor” may have employers breathing easier than if the court had embraced the broader description, they should not become lax about providing anti-harassment training, said Elaine Herskowitz, principal at Potomac, Md.-based EEO Training & Consulting Services, which investigates employee complaints of harassment and discrimination.
“I wouldn’t want people to get the message that ‘Oh well, if I don’t have authority to hire, fire or promote, there’s less concern about the employer’s liability for my actions,” said Herskowitz, a former senior staff attorney at the U.S. Equal Employment Opportunity Commission. “That’s a dangerous message. There still could be liability.”
While most companies conduct anti-harassment training of some sort, the quality of that training can depend on a company’s size and budget. Even in the largest of firms, Herskowitz said, some things slip through the cracks.
“Managers may think they can deal with the matter themselves, without involving higher-ups or HR,” she said. “Sometimes an employee might let a manager know about harassing conduct but ask the manager not to do anything about it yet. Even if the manager has attended training—where, hopefully, he got the message he has responsibility to take action—when the situation arises, many times managers feel the right thing to do is to honor the employee’s request. And that can get the employer in hot water if there is something serious going on. Down the line, this could be considered legal negligence.”
Among Parker’s and Herskowitz’s suggestions for improving anti-harassment training and generally strengthening anti-harassment policies:
Dana Wilkie is an online editor/manager for SHRM.
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