Safe Complaint Procedures & Proactive Efforts are the Best Risk Management Practices

By Lindy Korn, Esq.

The US Supreme Court decision in Kolstad V. American Dental Association offers protection for employers who take good faith efforts to comply with Title VII and thus avoid Punitive Damages while also providing an easier standard for employee's who sue for Punitive Damages. Similarly, the EEOC has issued its Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors issued June 18th, 1999, and provides a blueprint for such good faith efforts on the part of the employer.

Training Supervisors on what type of conduct constitutes retaliation will make the complaint procedure of any employer's anti-harassment policy more user friendly. Assurances that confidentiality will be honored to the extent possible pursuant to one's anti-harassment policy as will as following up with a fair and prompt investigation are all suggestions laid out in the new EEOC Guidance. At Diversity-Training Workplace Solutions, Inc. we utilize the psycho-legal approach to training whereby the pertinent law and its psychological counterpart are blended to crate an empathy for the issue that creates an emotional understanding as well as an intellectual one.

To demonstrate fairness and genuine concern about the ability to make a safe complaint, Diversity Training-Workplace Solutions, Inc. recommends that many options exist for making such complaints. A 24 hour, toll free hotline is an extra option that instills faith in the complaint process. We also suggest that employers have a stand alone anti-retaliation policy that is signed by every employee. If a complaint is lodged at an early stage, it may not become severe or pervasive behavior and thus not sufficient to come within the definition of sexual harassment. For a further review of the new Guidance please visit www.eeoc.gov.

The Kolstad Case involved a female lawyer who worked for the American Dental Association who was passed over for a promotion in favor of a male colleague. She sued under Title VII, claiming that the hiring process was a sham because the male candidate was pre-selected before the formal process even began. She also claimed that her supervisor told sexually offensive jokes at a meeting and used derogatory terms about women. The Supreme court ruled that the 1991 Civil Rights Act permits punitive damages in intentional discrimination cases where the defendant acted with malice or reckless indifference to federal law. Then the Court further held that an Employer cannot be held vicariously liable for punitive damages for and employee's discriminatory conduct as long as the employer made "good Faith" efforts to comply with the law. So, both Employee's and Employer's have been given a message for both bringing and proving a claim for Punitive Damages and a Defense to such claims. The Employer's escape hatch will only exist if the company can prove that a manager's decision was contrary to the company's good faith efforts- and then can demonstrate what constitutes those efforts.

Being Proactive, investing in training for one's Supervisors, and creating a safe and usable complaint process are all bare essentials for a non-hostile workplace.