How to Defend Your Company Against a Discrimination or Harassment Lawsuit
Risk management is fundamental to every organization, and those risks can come from anywhere. Environmental disasters, security breaches, third-party vendors, you name it. But one of the most dangerous risks to a company comes from the inside in the form of a wayward employee.
A wayward employee detaches themselves from the positive culture of their workplace and instead uses their power to negatively impact those around them. This can come in the form of one employee sexually harassing the other, discrimination against minorities, or fraud and abuse.
So what do you do if your company is getting equal blame for the bad actor’s decisions, when it really isn’t the company’s fault? What if you have every possible defense in place to protect your employees, yet the wayward employee still manages to inflict harm?
In that case, don’t despair, there are ways to protect yourself and your reputation from a lawsuit, bad press, and a negative company culture.
Prove Yourself To The Judge
Many brave individuals choose to report the wrongdoing they have experienced in the workplace to their company. Whether that is through open-door reporting or an anonymous third-party case management system, what really matters is that the company listens. Not only that, but they must make real changes to protect that employee from future incidents.
When a person decides to take legal action against the person who wronged them in the workplace, the lawyer chosen will cast a wide net to find who is to blame. This means the company will often be sued alongside the perpetrator, shining the spotlight on the culture under which the perpetrator got away with their actions.
The question then becomes this: Did your company do everything it could to protect the employee in question?
You may think this is hard to prove, but luckily the Department of Justice has explicit guidelines to follow to ensure that your compliance program is strong enough to be held up in court. We have a whitepaper coming out next month including a deep dive into these guidelines, but I’ll tell you the basics of what you need to know for now.
When determining if your company is at fault, there are 3 fundamental questions the prosecutor will attempt to determine the answer to:
Is the corporation’s compliance program well-designed?
Is the program being applied earnestly and in good faith?
Does the corporation’s compliance program work in practice?
I’ll link the full guidelines here for you to explore, but that is the meat of what you need to work on for your program to be considered strong enough to survive prosecution.
Once you have committed to the genuine and enthusiastic development of your corporate compliance program, the focus should be taken off your company, allowing the court to zero in on the real issue of the wayward employee.
Prove Yourself To The Media
Your company’s reputation in the public eye is almost as important as a successful defense in a lawsuit. You may be able to quickly recover from a settlement but recovering from a bad reputation can be a much more challenging pursuit.
Workplace discrimination and harassment news articles and broadcasts are like giving candy to your competitors and customers. If portrayed negatively, that gives your competitors a leg up to diminish your company as a threat. But if the story is positive, your current customers’ loyalty may be strengthened, and your company will gain respect in the eyes of the public.
The way it goes is entirely up to you. Consider these headlines:
[Company] faces another racial harassment lawsuit involving assault
Lawsuit: Black [Company] worker faced racism, told to keep quiet
[Company] to pay $370,000 to settle EEOC sexual harassment lawsuit
[Company] workers say sexual harassment and retaliation persist
[Company] worker sexually harassed by manager, lawsuit says
Sounds bad, right? What if I told you these are all real headlines that I found with just a quick Google search?
If given the ammunition, news outlets and commentators will jump at the chance to pin the wrongdoing on your company as a whole, ignoring the details of the bad actor. Especially if you have done nothing to prove that you had the best intentions of preventing such an incident.
However, if you have taken the steps mentioned earlier to bolster your compliance program, the tone of those headlines may change. If you were truly doing everything you could to protect your employees, they might read something like this instead:
[Employee] fired for sexual harassment, [Company] doing an internal review
[Company] lets go dozens of employees as result of anonymous report investigation
[Company] reinstates employee after wrongful termination by supervisor
The difference here is that the spotlight is now on the perpetrator, and the company is being presented as reflective and willing to enact change. Of course, this will only be the case if that is your company’s real intention. Surface-level efforts to purely protect your reputation will be easily seen through. The only bulletproof defense is putting truth behind your statements of blamelessness.
Prove Yourself To Your Employees
A discrimination or harassment lawsuit can rattle your employees. They may feel unsafe, like they can’t trust the company to protect them. They may even begin to fear their coworkers, unsure of their intentions.
If you lose the lawsuit and are heavily criticized in the media, it might do irreparable damage to your company culture. For that, you’re going to have to speak to someone with a lot more experience on that end.
But what I can tell you is that if you win the case and prove your good intentions to the media, your employees will be more likely to believe that they are in good hands. Of course, the allegations made will still have a negative impact. Internal communication will have to happen quickly, emphasizing that you intend to do everything you can to make sure this never happens again.
This effort may start with an intensive internal review, welcoming anonymous feedback from all your employees and coming up with a strategy to utilize that data to make positive changes.
Wayward employees are more common than you think. A lot of them go unreported and can destroy your company culture from the inside. But if you follow the guidelines given to you by the DOJ, and truly try to protect those who work for you, your company’s reputation and well-being will strengthen and change for the better.
The ETHIX360 blog brings you weekly updates on all things human resources and compliance.
MEET THE AUTHOR
Katie Shivers is the Director of Marketing for ETHIX360. She is responsible for content creation and engagement for all the communities we serve on numerous social media platforms, as well as managing all forms of client communication.
ABOUT ETHIX360
At ETHIX360, our goal is simple: to provide an affordable, flexible, and comprehensive answer to employee communication, policy management, corporate training and case management on issues related to corporate ethics, code of conduct, fraud, bribery, and workplace violence.
