Legal Update - January, 2003
Harassment: Handling the Request To Do Nothing

Many employers face the issue of what to do when an employee complains about alleged harassment but asks that nothing be done about it or does not provide sufficient information for the employer to take corrective action. Often the dilemma arises in the context of sexual harassment. It can, however, be raised in the context of other forms of prohibited harassment.

A Typical Scenario

Suppose that an employee tells you that an unnamed employee has repeatedly made disparaging comments about her Indian ancestry and has belittled her religious beliefs. Suppose also that the employee tells you that she "Doesn’t want to make any trouble." Suppose the employee further states that she does not want you to do anything about the problem and that she won’t tell you who is making these remarks.

What do you, as a manager or an executive, do if you are faced with this kind of scenario? It may be tempting to say, "There is nothing I can do, if the employee won’t provide information or doesn’t want me to take action." That, however, is not the appropriate response. You need to devise a strategy to deal with the situation and then take prompt action. In addition to calling legal counsel, there are a number of things that you can do that could be responsive without violating the employee’s wishes.

No Tolerance for Harassment

First, impress upon the employee that your organization does not tolerate harassment based on national origin and religion. Explain that, under the law and your organization’s harassment policy, it is incumbent upon you to investigate the claim. Reassure the employee that there will be no retaliation for coming forward, and advise the employee that the complaint will be handled discreetly, to the extent possible.

Investigate the Best You Can

Second, try to convince the employee to share with you who was causing the problem and to allow you to investigate the situation fully and openly. Explain to the employee that it is difficult, if not impossible, for you to respond if the employee does not provide you with more information. Consider advising the victimized employee that other employees may be experiencing similar problems with the offending employees and that it is in everyone’s best interest to investigate. Depending on your organization’s policy, you might point out how the policy requires employees to be specific when communicating about alleged harassment. If those approaches do not succeed in providing you with more information, you should investigate the best you can. For example, you might want to speak discreetly with some highly regarded employees to ascertain how morale is in general, whether the company’s Anti-Harassment Policy is being followed, and whether employees are treating one another with dignity and respect. You might want to walk around your facilities more often to see if offensive conversations are occurring.

Training

Third, you might consider scheduling a mandatory training seminar for all employees. That way, you can generally address the issue of diversity in the workplace and, more specifically, harassment. You might have the trainer use an example that is close to, but not exactly like, the situation in which the employee is involved. The trainer could explain why the conduct would be offensive.

Documentation

Fourth, you should write a memo to the employee documenting your unsuccessful efforts to investigate her complaint because of her refusal to provide you with information, and outline the steps you have taken. Have the employee sign the memo acknowledging its accuracy and her receipt of it. The memo should encourage the employee to come forward if she has any additional information or problems. The memo can provide you evidence to support a viable defense if, in the future, the employee were to change her tune and complain that you did nothing in response to her harassment complaint.

Following Up

Fifth, you should periodically check back with the employee to determine if the harassment has stopped and, if it has not, whether the employee would like to register a formal complaint. Again, documentation is important.

In A Nutshell

If you are confronted with a scenario like the one outlined above, be sure to investigate the allegations as permitted by the employee’s disclosures. If the investigation uncovers harassment, appropriately counsel or discipline the harassing employee. Reiterate and possibly republish your organization’s policy against harassment and require employee attendance at anti harassment training sessions. These affirmative steps will serve a dual purpose. Employees will realize that your organization’s desire to eliminate harassment is not merely lip service. Your efforts will aid in promoting a workplace atmosphere in which harassing behavior is not tolerated. Moreover, if the employee subsequently files a harassment charge or claim, you can demonstrate that you have taken reasonable steps to address and correct the situation.

Funkhouser Vegosen Liebman & Dunn Ltd. publishes updates on legal issues from time to time for the use of its clients and friends. They are merely informational and do not constitute legal advice. We welcome comments or questions. If we can be of assistance, please call or write: Jon Vegosen, 312.701.6860, , Rochelle Dyme, 312.701.6845, , or your regular FVLD contact.

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