Dealers have long known of the dangers of lawsuits involving employees contending they have been the victims of discrimination or harassment. However, with today’s unprecedented focus on charges against Hollywood, media, and political celebrities, a dealer must give renewed attention to its policies and procedures. Here are ideas for a refresher as you review the dealership’s commitment to protection of employees against discrimination and harassment.
The Program
A sound program to prevent discrimination and harassment has four basic parts:
- An effective policy;
- Training of employees and managers;
- Investigation of alleged wrongful behavior; and
- Resolution based on the investigation.
Policies Against Discrimination and Harassment
The dealership must state its policies against discrimination and harassment clearly and forcefully. A dealership has leeway in the specifics of the policy, but it should prohibit discrimination and harassment on a basis prohibited by law.
“Discrimination on the basis of race, color, religion, sex, national origin, age, disability and any other basis prohibited by law will not be tolerated. Harassment of any employee by a supervisor, co-employee or non-employee based on race, color, religion, sex, national origin, age, disability, or any other basis prohibited by law is against the Company’s policy.”
Unlawful discrimination generally consists of a decision that the company should not hire someone, or should not allow him or her the benefits given other employees, or should not promote someone on a basis prohibited by law. Harassment (there are multiple bases for unlawful harassment, but the primary basis, by far, is sexual harassment, and this article will concentrate on that) can occur when an employee is subjected to unwelcome sexual advances, requests for sexual favors, or other verbal, written or physical conduct of a sexual nature. When this harassing conduct takes place, the claim of sexual harassment can fall into either or both of these categories:
- Quid Pro Quo harassment – In this harassment, submission to unwelcome sexual conduct is made a term or condition of an individual’s employment either explicitly or implicitly.
- Environmental sexual harassment – This involves unwelcome sexual conduct with the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment severe or pervasive enough that a reasonable person would find it hostile or abusive.
Policy on Limited Confidentiality
Many who complain of improper behavior want the matter to remain confidential. That is not something that an employer can promise. There should be effort to protect confidentiality. However, when the investigation of the wrongdoing starts, those who are alleged to have engaged in the wrongful behavior and others to whom management speaks, whether they are witnesses or victims of similar conduct, may very well figure out the identity of the complainant. Therefore, an employer can never promise complete confidentiality. An employer can promise not to publicly announce the identity of the complainant or the nature of the complaint. However, that information will likely become evident to those with whom management meets in the investigation.
Policy of Non-Retaliation
Because one can never promise complete confidentiality, a policy against retaliation is critical. Complaints of retaliation – charges that the complainant or witnesses were punished for coming forward and for talking candidly about the alleged wrongful behavior – are sometimes worse than the underlying charge itself. An employee subjected to retaliation can maintain a legal action even absent a finding that actual discrimination or harassment took place.
Employee Training
The company should remind employees about the company’s policies prohibiting discrimination and harassment and outlining the complaint process at regular meetings (at least annually) of all employees. The meetings should have a short portion in which you cover:
- The company’s policy against discrimination and harassment; and
- The need for employees to report behavior they feel violates the policy. The report should preferably be to the employee’s supervisor. If the employee feels uncomfortable, then means to report the behavior to senior management should be provided. The dealer should provide a number for a hotline or a line directly to the dealer so there is no mistake about the importance of reporting these matters.
Employee awareness of the policies and process is critical. Under law established by the United States Supreme Court, an employee’s failure to report wrongful behavior can give the employer a defense to a legal action, but only if the dealership can show that the employee knew of the policy against discrimination and harassment, knew of the importance of complaining, and knew to whom a complaint should be reported.
Manager Training
Manager training is even more important than that for employees.
- The Importance of Action. Managers must understand that if they observe a problem or a complaint comes to their attention, they must immediately take action. All complaints of discrimination and harassment are important and must be handled properly.
- Method of Response. Managers must be trained in the proper actions to take if they see a problem or if they learn of a problem. A manager must understand the importance of remaining neutral and not overreacting, whether the manager sees the behavior personally or receives a complaint.
- The manager must be taught how to investigate if a charge of wrongful activity is made. There are specific steps in investigating and managers must know how to effectively investigate alleged violations of company policy.
- Managers must understand there must be a resolution to any investigation. Whether there is a decision that nothing improper occurred or a decision that the offending employee must be terminated, there must be a conclusion, and the person who claimed to have been the subject of the wrongful behavior must know that resolution.
How Managers Should Investigate
Managers must be trained how to investigate a problem that comes to their attention. Very specific steps should be followed.
- Listen carefully and get the facts. Managers must know precisely what the complainant says the alleged wrongdoer did.
- Identify any other people subject to the behavior or witnesses to the behavior. Often complaints of discrimination or harassment are matters strictly between the alleged wrongdoer and the person complaining. It is often difficult to come to a conclusion when the investigator must depend solely on the demeanor of those people. Therefore, finding out who may have seen the improper behavior or who may have been subjected to similar behavior is critical.
- Determine the desired results. Ask what the complainant wants. This can give early insight into potential resolutions.
- Explain how the matter will be handled. The complaining employee must know that the matter will be investigated and that management will report back on the resolution of the problem.
- Explain the limited confidentiality of the process and the Company’s non-retaliation policy. For reasons we have discussed, a dealer will not want to announce the complaint over the public address system of the dealership. However, a dealer can never promise complete confidentiality because those to whom management talks in the investigation may well come to a conclusion about the identity of the complainant, and management should want to know if there is even a hint of retaliation since that is a serious claim.
Interviewing the Person against Whom the Complaint is Filed
The first person to whom the dealership should talk is the person alleged to have violated the company’s policies.
- Meet personally. Never handle these investigations by phone. A personal meeting is best to judge his or her demeanor.
- Tell the Purpose of the investigation. The person must know that the matter is a serious one for the company.
- Focus on the employee’s actions. Do not approach the investigation as if the person alleged to have engaged in practices in violation of the company’s policies is a bad person. The actions of the person, however, may be actions that can damage the company. Focus on the actions, not on the person.
- Explain the company’s limited confidentiality. The person against whom the complaint was made should know that management will not be shouting about the investigation from the roof top. However, the complaint and the investigation cannot be completely
- Emphasize Non-retaliation. It is critical that the person alleged to have violated company policy know of the company’s non-retaliation policy. It should be clear that regardless of the occurrence and severity of the underlying behavior, retaliation is a very serious matter that will almost surely lead to termination of the person engaging in retaliation.
- Get specific responses. Dealership employees can be experts in answering questions they wish they were asked. A manager must get answers to the questions asked.
Generally, the next step is to meet with witnesses or others who may have been subjected to similar behavior.
- Tell the purpose of the investigation. The witness must know what the investigation is about.
- Focus on the employee’s actions. Be very clear that the investigation is about actions that may have violated company policy, not about the character of the person complained of.
- Get specific responses. Once again, specific information is critical. A manager cannot allow the friendship of the witness with the potential violator of company policy to knock the investigation off stride.
- Advise the witness of non-retaliation. The witness must know that the company has a very strong policy against retaliation. He or she must know there will be protection if the person against whom the complaint is made seeks to retaliate against the witnesses who are candid with the company.
Resolution
Once the investigation is complete, the investigator should come to some resolution. This is often a complex decision. Therefore, the investigating manager should meet with other managers and the dealer to come to a conclusion. When considering the action to take, the following should be considered:
- Did it happen? The results of the investigation should be carefully reviewed to conclude whether the activity complained of took place.
- Severity of activities. How severe was the action that violated company policy? While all charges of discrimination and harassment are important, just as in anything else, there are degrees of wrongdoing.
- Position of employees. One employee harassing another is bad. Managers harassing employees they supervise is worse.
- Continuing nature of conduct. Was this a one-time activity? Were there multiple occurrences? Is the behavior ongoing?
- What was the effect on the person complaining? Assess how severely the conduct affected the complainant. Many complainants try to keep a “stiff upper lip”. Other employees may simply fall apart no matter how small the provocation. Understand the complainant and whether the complainant’s reaction was reasonable.
- Prior Decisions. How have similar complaints been handled? If there is a history of employment actions resulting from discrimination and harassment complaints, make sure that the resolution is consistent with
The Decision
A manager has several penalties that can be tailored to the problem. Termination is always a possibility. However, there are many options short of termination such as a verbal warning, a written warning, a requirement of counseling, or a suspension.
Once the decision is made on the type of action that will be taken, management must meet personally with the person alleged to have violated company policy. If the person is to be terminated, explain why and process the person for termination. If the person will not be terminated, explain the lesser penalty and then do several things that are critical:
- Get the employee’s commitment to stop the activities.
- Get the employee’s commitment to no retaliation.
- Get a commitment to an apology if requested by the accuser.
Close the Loop
Once the decision has been made about the resolution, meet with the person subjected to the behavior to close the loop. Explain to that person the resolution. Discuss it candidly and discuss the reasons for taking the action if requested.
The Importance of a Refresher
Some have argued that American businesses are less susceptible to charges today than the politicians who exempted themselves from laws against discrimination and harassment or the Hollywood and media figures who used their prominence to hope they would be insulated. However, you would be hard pressed to find a time when publicity and charges of sexual misbehavior have been so widespread.
In this atmosphere, one cannot overlook the possibility that employees will be “woke” (in today’s parlance) to situations that did not previously move them to action. Given these circumstances, a dealer must assure its policies and procedures are in place.