In yesterday’s Advisor, Attorney Francis M. Drelling shared the story of a sexual harassment complaint in Santa’s workshop and how the company handled it so very ho ho horribly wrong; today, Drelling shares how the company should’ve handled the situation with this mall Santa.
Drelling, who serves as general counsel of the Restaurant Division at Specialty Restaurants Corp., wrote the following analysis. He can be found on LinkedIn or reached via e-mail at email@example.com.
What Should Have Happened?
If the company had properly handled this harassment report, it probably could have been easily resolved. However, since the employer couldn’t get it right, the elf was left with little choice but to turn elsewhere for help. So, let’s take a look at a few of the ways that this complaint could have been better handled.
First, when the elf made the initial complaint, she should have been given better attention. The manager should have let her know the company takes these complaints seriously and obtained a written statement from the elf. This way the elf’s version of events would have been documented and an investigation properly commenced. Additionally, human resources should have been promptly notified.
Second, Santa should not have been permitted to continue taking photographs with children. He should have been promptly removed and replaced with a look-alike from the North Pole. Why? Because once aware of the allegation that Santa had inappropriately touched the elf, the company had a duty to protect other employees, patrons, and minor children who might come into contact with Santa. This failure to protect unnecessarily subjected the employer to additional levels of legal exposure. Note that the suspension of Santa is not a determination of wrongdoing. Rather, it merely stabilizes the situation while the actual facts are being explored. Furthermore, it also protects the accused from yet further allegations of wrongdoing.
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Third, individuals reporting harassment are not to be compelled, or pushed, into confronting the accused. This is especially the case when the accused is in a senior position. Furthermore, and as a historical point, it has been almost 40 years since the EEOC took the position that this is not the proper way to handle an investigation. Following this technique has a high potential of generating a bad result while, at the same time, demonstrating to the EEOC that the company has failed to properly train its personnel. Keep in mind that even when the accuser agrees to the meeting, if it does not go well, they can still claim they were pushed into it and wanted nothing to do with that process.
Fourth, the other elf, and any other employees who were present, should have been interviewed by the company. But, from the information we have, it does not appear that any other interviews were conducted beyond the one where Santa was verbally notified of the allegations. If the manager was going to interview Santa, it would have best been done after she had interviewed other witnesses so he would be questioned only after the manager had a fuller grasp of the facts. Additionally, it does not appear any written statements were obtained—at least not by the employer. The failure to obtain signed, written statements leaves individuals free to later modify their stories and also makes it difficult for an employer to defend itself in the event a lawsuit is filed. In any event, and unfortunately for Santa, the police did perform their job and, despite his best efforts, Santa was unable to avoid being arrested.
Although we do not know how this tale ended, we do know that the company could have better handled this sexual harassment report. Had the company done a better job, this situation might have become an example of how to easily document, and resolve, a harassment complaint. Instead, it resulted in:
- The elf having no choice but to seek outside intervention;
- The company being exposed to potential liability if Santa is accused of inappropriately touching other persons after the complaint was received;
- The company being exposed to a harassment, retaliation, and/or constructive discharge (unlawful termination) lawsuit by one or both of the elves;
- Two elves quitting; and
- Santa being arrested.
The moral of this story is to properly train your personnel and ensure that they comply with that training. Personnel should be taught to immediately notify their human resources department upon becoming aware of a complaint sounding in discrimination, harassment, and/or retaliation. Once notified, the company can intervene and ensure that everything is properly handled and documented. Remember, if it wasn’t documented, then it just didn’t happen—at least not for the EEOC and the trier of fact (read: judge/jury).
While one can only speculate as to why this elf’s HR department responded the way it did, it’s clear that it didn’t have the rights of the employee in mind. Most HR professionals chose a career in HR because they wanted to make a difference in people’s lives. In fact, “77% of HR professionals cited helping people as their primary reason for choosing the profession.”
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