In yesterday’s Advisor, Whitney Warner shared secrets of winning lawsuits against employers. Today, more of her tips, and a policy system that’s designed to keep her and her ilk at bay.
Warner is a partner with Moody & Warner, P.C., in Albuquerque, New Mexico. Her remarks came at the recent Society for Human Resource Management (SHRM) conference in Chicago.
The EEOC Response Not Well Done
Warner says that one of the employer mistakes that makes her day is lack of attention to their Equal Employment Opportunity Commission (EEOC) response. Warner gets all the EEOC documents at the beginning of the case and watches carefully. If anything comes up in testimony that contradicts what the employer told the EEOC, she pounces.
Giving the EEOC Phone Numbers
The EEOC asks for contact information, but if you don’t give it, they typically won’t push. They rarely contact individual employees, so Warner advises using initials and giving demographic information. If you include addresses and phone numbers, Warner says she is going to call those people and ask whether they, too, might have been victims.
EEOC Response Fails to Refute the Conduct
In one case, Warner alleged that her client was harassed over many months. The company’s EEOC response never said that it didn’t happen, that it wasn’t severe and pervasive, and that they hadn’t violated the law.
But that’s exactly the kind of information that should be included in the employer’s EEOC response in order to make plaintiffs’ attorneys prove their cases, Warner says.
A related problem is when employers give short shrift to the EEOC. It’s not enough to say, “We have a policy and we didn’t discriminate.” Put some meat on it, Warner says.
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Terminated for Performance with Good Evaluation
Warner frequently finds that poor performance is given as the reason for termination. Then she finds recent performance reviews that are positive or even glowing. In one case, the performance review actually said, “This employee walks on water.”
That makes the termination very hard to explain, she says.
Failed to Follow Your Own Policies
In one of her cases, Warner’s client was sexually assaulted with inappropriate touching by an outside third party. The response of the supervisor was to pray about it. That was all.
When the client came back to work, the third party stalked her around the building, but the company still didn’t do anything. The manager admitted she was aware of the situation, but when Warner why she hadn’t done anything about it, the manager replied, “I don’t know.” That case settled.
How about your managers? Do they know the policies? Do they follow them? And how about the policies themselves? Are they all up to date? Do you have all the policies you need?
You Can’t Back-Burner Your Policies
Changes to the Family and Medical Leave Act (FMLA), military leave, accommodation rules—the list of policy requirements seems endless. But you can’t backburner policy changes—they’re your only hope for consistent management that avoids lawsuits.
You need policies that are carefully crafted, legally reviewed, and regularly updated. But it’s no light task to write and update the dozens of policies that any organization requires.
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