What’s Penn State Mean for HR? More Harassment Cases

Sexual harassment charges had been declining somewhat, but the recent publicity will reverse that trend, says Schickman, who is a partner at Freeland Cooper & Foreman LLP in San Francisco. His remarks came at BLR’s Advanced Employment Issues Symposium in Las Vegas.

Schickman is a member of the Employers Counsel Network, and edits the BLR/HRhero California Employment Law Letter.

What Else Is Happening in Discrimination Charges?

Schickman also notes that sex discrimination charges are increasing, as are pregnancy discrimination, religion, national origin, and age discrimination cases.

Every time the stock market tumbles, Schickman says, people in your organization delay retirement, and they’re the ones likely to file those age cases.

Equal Pay Act charges are going down, Schickman says, but that’s primarily because employees can get more relief suing under gender discrimination laws

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And then there are retaliation charges, which are skyrocketing, says Schickman. Why are these cases suddenly so frequent? First of all, Schickman says, they are easy cases to bring. Retaliation is easy for juries to understand and they respond to it.  Timing is often against the employer—Employee did a protected deed and then was fired.

The retaliation charge often sticks even if the underlying case is lost or has no merit.

And there’s a subtle aspect to these cases, Schickman says, that it’s important to be aware of: Management is likely to be more angry when they believe they are falsely accused of retaliation (they’re always going to think that) and that doesn’t make for good judgment.

Here are two things to do for sure if you receive a charge, says Schickman:

1. Ask for an extension. A 30-60-day extension is generally not a problem, at least in the federal world, he says. This will give you time to investigate and prepare a thorough response.
2. Respond to all charges. If you don’t respond, there’s nothing in the record to suggest that you aren’t guilty of the charge. In your response, include a blanket denial at the beginning and end of your response, he adds

Retaliation, discrimination, harassment—they don’t make HR easy. And they’re certainly not the only challenging task sitting on your desk! Fortunately, there is a good way to make a lot of HR jobs easier—clearly-written policies. Actually, our editors estimate that for most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It’s easy to let it slide, but you can’t afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.

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