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Discrimination / Harassment

No application on file, no failure-to-hire claim

03/22/2012

People who want a job must actually apply for it before they can allege they weren’t hired for discriminatory reasons. It’s easy to prove someone didn’t apply. Simply post job openings and retain all applications.

Having anti-harassment policy isn’t enough: You had better be prepared to enforce it, too

03/22/2012

It’s not enough to have an anti-harassment and discrimination policy in your manual. It’s not even enough to train everyone regularly on what the policy requires. What really counts is enforcing the policy when complaints come in. If you don’t, the penalty may be punitive damages.

Warn managers: That snarky email may be the smoking-gun evidence that loses a lawsuit

03/22/2012

It used to be that managers picked up the phone when seeking HR’s input on how to handle an employee problem. These days, they send an email. That can spell big trouble. Email, unlike a phone conversation, leaves a perfect record of what transpired. And courts don’t hesitate to use email as evidence.

You don’t always have to terminate harasser

03/22/2012

Sexual harassment runs the gamut, from out-and-out assault to un­­welcome flirting. No sane em­­ployer would hesitate to fire someone who physically harmed a co-worker. But for less severe, isolated incidents, less drastic action may be reasonable—as long as it solves the problem.

Stamp out racially offensive graffiti ASAP

03/22/2012
Some forms of racial intimidation are so offensive that even one incident may be enough to create liability, unlessthe employer acts fast. Racially hostile graffiti is one example. If you don’t take steps to cover it and prevent recurrence, even one offensive tag can mean liability.

When merger looms, focus on evaluations

03/19/2012
HR professionals are often among the first to know that big organizational changes are on the way. If you learn about an upcoming merger, don’t spill the beans, but do diplomatically prod managers to complete all pending performance evaluations.

Government employees have limited privacy rights

03/19/2012
Public employees don’t lose all privacy rights just because they work for the government. But that privacy is subject to limitations.

Anonymous complaint? Investigate to get all details

03/19/2012

If you receive an anonymous complaint about a hostile workplace, launch an investigation right away. That way, if an employee later sues, you can easily compare what he said to the investigator with what he remembers now.

It’s your word against hers: Juries often decide if charges are trumped up

03/19/2012

If you get sued for retaliation by an employee who has previously filed a sexual harassment complaint, a jury will probably be suspicious of any discipline she received after complaining. Unless you can convincingly show the discipline you levied was deserved, a jury will have to decide if it was retaliation or legitimate punishment.

Track what happens to everyone on a PIP

03/19/2012
Here’s a tip if you use performance improvement plans (PIP) before termination. Track what happens to everyone who’s on a PIP. Note those who quit instead of facing discharge.