Employee complaints based on anonymous harassment pose special problems
for employers. How do you uncover the source of the problem when no one
is able to identify who acted inappropriately? One employer learned the
hard way what not to do and what should be done.
A black female employee complained to her supervisor
about receiving an anonymous note in her mailbox. The note appeared to be
a federal hunting license authorizing the holder to hunt and kill black people
day or night, with or without dogs.
There was also a hand-drawn stick
figure with a noose around its neck. The supervisor first reported the
incident to his manager, but neither reported the incident to Human Resources.
They also did not document the incident or interview anyone. Following
this cursory investigation, nothing further was done as no one was able to
identify a suspect. No one even notified the complaining employee that
the matter was closed.
Not hearing anything about her complaint, the employee
called an employee hotline and also reported the incident to the police.
Her calls triggered a new investigation by the Human Resource department, but
no useful information turned up. Human Resources then ended its investigation
concluding that the incident was isolated. It later turned out that the
on-site managers and supervisors were aware of earlier incidents of targeting
of black employees, but did not disclose them.
Eight months later, the employee received a similar
threatening note and immediately reported it. She asked why cameras had
not been put in the area. The same threat was received by several other
black employees, who also reported it. This time cameras were installed.
Nothing turned up and the investigation again was closed. The police
fingerprinted employees so that in the future any notes could be dusted for
prints.
The targeted employee then sued alleging a hostile
environment. While the district court granted the company’s request for
summary judgment, the appeals court reversed. The appeals court was
critical of the company’s actions and set out guidance on what should have been
done.
First, the company failed to recognize that the
racially tinged death threats created a hostile work environment. The
threats should have been immediately reported to the police. Second,
while the company had a discrimination policy, its supervisors and managers did
not follow it. Employers must train supervisors and managers on what they
are to do if they receive a complaint and they must be held accountable for
enforcement of the policies. Third, the response to the threats was not prompt,
was not calculated to end the harassment, information about past incidents was
not timely disclosed, and employees were not interviewed on a timely
basis. Fourth, no additional protection for the employee was provided,
cameras were not installed, and security personnel did not offer to walk the
employee to and from the parking lot. Finally, the targeted employee was
not told what was happening with the investigation. The court faulted the
company for not doing enough to ensure the safety of its employees and to
eliminate the hostile work environment.
It is imperative when there are complaints of
harassment, especially those involving physical threats, that they be taken
seriously, even to the extent of notifying police. A thorough
investigation must be conducted, appropriate remedial steps must be taken, and
the complaining employee must be advised of the outcome of the investigation.
An anonymous threat does not excuse the employer from treating the matter
seriously. While the culprit may not be identified, steps can be taken to
ensure the safety of employees, to reinforce company policies, and to provide a
safe work environment. The lack of an adequate response can not only
result in liability, but it can also leave employees believing that the company
does not care about them, resulting in poor morale and possible lawsuits.
Questions or Assistance:
If you have questions regarding either of these
changes, please contact Gary Starr at gstarr@goodwin.com or (860) 251-5501 or
Gabe Jiran at (860) 251-5520 or gjiran@goodwin.com.
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