WISDOM BORNE OF EXPERIENCE
By Cynthia Maxwell Curtin, of counsel, Curtin & DeJoseph, PC
Having experience with over 1000 investigations, I have gleaned a bit of wisdom about how to prevent and handle complaints of discrimination, harassment, and/or retaliation. I hope that this succinct article will spare your organization from learning lessons the hard way.
- Make sure the organization’s policies have a threshold that is higher than the law. Generally, legal liability attaches when problems are severe and pervasive but it is not wise for an organization to wait until a problem is severe and pervasive before the problem is addressed. To wait until a problem is that bad, the organization loses morale and productivity and it faces legal liability. The organization’s policies should be oriented towards building a culture of treating people fairly and with respect and ensuring that issues are addressed quickly and effectively even after a single isolated incident. In other words, expect people to behave better than just complying with the law.
- Prevent concerns by:
- conducting regular (at least annual) interactive, meaningful and effective training regarding discrimination, harassment, and retaliation and the organization’s policies relevant to these topics;
- conduct leadership training (not just management training) of all people in supervisory positions (including managers and executives);
- avoid a “check the box” mentality with regard to training and prevention efforts;
- track turnover rates because a good leader recruits and retains talent while a bad leader generates turnover, low morale, low productivity, complaints and legal liability;
- hold people accountable for compliance with the organization’s relevant policies such as the no discrimination/harassment policies and ethics policies;
- build into the organization’s performance review systems accountability for how people treat each other particularly for those in leadership positions; and
- ensure that the organization’s policies (see number 1 above) consistently drive towards a culture of fairness and respect.
- Take any complaint or concern seriously. Generally, this means that the organization must ensure that a prompt, thorough and neutral investigation is conducted. Please realize that the Human Resources department, the organization’s regular defense counsel, and/or in-house counsel probably will not be regarded as “neutral” by the Complainant or the jury.
- Remedy any problems revealed by the investigation. Typically this involves ensuring the Complainant’s concerns are addressed and taking action to prevent a recurrence.
- Do not think the organization is above the law. Some leaders think that their organization is so big or important that no one would sue it or them. In New York, as of January 2016, attorneys who represent Complainants/Plaintiffs are motivated to sue because, if they win a sex/gender discrimination suit, their fees will be paid by the Defendant/organization. The Plaintiff’s bar is now ready and willing to sue. Moreover, cases of discrimination, harassment and/or retaliation receive negative publicity which decreases support of the organization. That is, in itself, a price to pay.
Taking these actions to prevent and address concerns of discrimination, harassment and/or retaliation may seem onerous. However, what is really onerous are months of depositions, discovery of every document and email regarding the treatment of everyone in the same protected class as the Plaintiff and then facing a jury of the Plaintiff’s peers with the prospect of the organization having to pay for its defense, the Plaintiff’s attorneys’ fees, the Plaintiff and knowing that all of this just may hit the news.
Ms. Curtin is an expert in discrimination law with particular expertise in preventing discrimination, harassment and retaliation and neutral and independent investigations of such allegations under a myriad of laws including Title IX (applicable to most educational institutions), Title VII (applicable to most employers), Americans with Disabilities Acts (as Amended), and similar state and local laws.
She has conducted training and investigated complaints in both the private and public sector including colleges, universities, health care organizations, trucking companies, retailers, schools, and manufacturers.
She is a member of the California bar and is a graduate of Brown University (Phi Beta Kappa, Magna Cum Laude) and University of California, Los Angeles, School of Law (member of the UCLA Law Review).
She can be reached at 315-530-8745.