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GOULD ON LABOR OPINIONS Workplace Harassment: Back to Basics BY ANDREW M. GOULD BUSINESS owners, no matter their size, generally know that workplace harassment is something that cannot be tolerated. The law surround- ing actionable harassment can be complex. It is a fluid body of law dating back to the mid-'70s, it can vary from state to state, and from federal law to state (or even city, county, or other municipality) law, and trying to define the parameters of harassing conduct is akin to defining obscenity (the "I-know-it-when-I-see-it" standard). Still, there are things that every business owner would be wise to consider. 1. Maintain a written policy making clear that mistreatment of fellow employees will never be tolerated. Even if you have two employees it can never hurt to set expectations. 2. Make sure employees know you have an open door policy and that they should bring all concerns to a supervisor's (or an owner's) attention. Letting problems fester is a sure recipe for disaster. Generally speaking, complaints do not need to be in writing. 3. Let individuals know they are not instructed to follow a regimented chain of command when lodging a complaint. Be clear in your policy that victims should report claims of harassment involving their direct supervisor to another supervisor and Human Resources. 4. When you receive a complaint, evaluate how best to address the matter. Make sure you get the complete story from the complaining party; in some circumstances, you may want to speak with legal counsel to determine whether an investiga- tion is warranted and, if so, how best to conduct one. 5. Don't forget to report back to the complaining party following a complaint and/or investigation. Be sure to let the individual know that you appreciate them coming forward and that if she feels retaliated against, to speak with you immedi- ately. Retaliation makes every complaint a much more serious matter. 5. Keep track of things. Employees want to know that you are more than a business owner and that just having a written policy, or listening to a complainant, is not the extent of your interest in the well-being of your workforce. For employers with more than 15 employees, federal law imposes numerous obligations to address workplace harassment. Above all else, employers must take prompt and remedial action when faced with a good faith complaint of harassment. What that means will generally depend on the situation. But the previous six points are worth remembering, particularly before you are faced with an allegation of harassment. This column is not considered legal advice but solely the opinion of the author. Andrew M. Gould is a labor and employment attor- ney board certified by the Texas Board of Legal Specialization and a partner with the law firm of Wick Phillips Gould & Martin LLP. You can e-mail him at andrew.gould@wickphillips.com. november 2012 3