Harassment Policy Violation - What to do when your new manager makes a firing mistake.


Most companies want to do the right thing and make correct HR decisions. A quality HR program pays off in a multitude of ways. Still, companies sometimes make very bad decisions, or, more likely, employees may make poor decisions that you may have been unaware of when the decision was made. Reasons for ill-advised decisions vary, but many times these are rooted in a lack of proper knowledge and training. Bad manager decisions force you to operate reactively rather than proactively. While the old adage "an ounce of prevention is worth a pound of cure" is absolutely true with respect to HR matters, there are times that the only thing you can do in a reactive mode is provide that "pound of cure."


Let’s presume you already have a comprehensive antidiscrimination and harassment policy. In addition to the creation of the policy, proper notification of the policy and training were provided to employees. All appears well, until you get "the call." A former employee calls and claims that she was unfairly treated and terminated after she told her manager several times that she did thought a co-worker’s jokes were offensive.


Investigate And Take Action Immediately


In situations like this, it is imperative that you begin a thorough investigation immediately. This investigation should not only focus on the underlying complaint, but also in determining why the complaint was not investigated earlier. It may be important down the road to show that, although there was an initial breakdown in the policy, a thorough investigation was ultimately conducted.


You come to find out:

  1. A co-worker (a long-term employee) routinely made offensive jokes to her, and others, about the female anatomy.
  2. That the fired employee had made repeated complaints to your manager (a new employee who had been with the company for only a few months)
  3. Against the Harassment Policy, it looks like nothing was done after her complaints and the jokes continued.
  4. After she complained for the third time to the manager this morning, the manager terminated her for her "bad attitude."
  5. In addition, it looks like the employee was never disciplined for anything whatsoever in the past.
  6. The manager admits to terminating her because he felt that what she was complaining about was not a big deal.
  7. Lastly, the manager never received training on how to handle such situations.

Next Steps


You should review whether the procedure for reporting complaints was adequate. In avoiding harassment cases, it’s important to have a policy and process for handling complaints. Also, was the process followed in this case? Was the employee and the manager adequately trained? Given a handbook? Acknowledged its receipt?


As in most harassment cases, the biggest potential problem is the specter of a costly retaliation lawsuit. Because of that, employment counsel should be involved in developing an appropriate response.


In this scenario, all efforts should be made to get the complaining employee back to work. Even if you don’t think the employee will accept the offer of employment, it should still be made. By making an offer, even if it is not accepted, you are potentially limiting back pay damages if a lawsuit eventually does ensue.


Still, you cannot simply bring the complaining employee back to work without addressing her original complaints of harassment. Assuming her co-worker was indeed routinely making offensive jokes, appropriate discipline must be taken. The past discipline history of the employee should be taken into account in determining the correct disciplinary action. Keep in mind that the discipline should be designed to eliminate the conduct that was in violation of the anti-discrimination and harassment policy.


Fix Your Process to Prevent Future Problems


Finally you have to address the manager's failure to properly address the original complaints. This scenario could have potentially been avoided if the manager received proper HR and management training. Bottom line, don’t have a manager working who does not understand this important policy. Failure to do so exposes your business to potentially costly litigation.


Modern Business Associates frequently deals with harassment policies. As a Professional Employee Organization, our clients rely on us to help them effectively deal with these kinds of topics including how to prepare properly to avoid harassment claims.