This month we are focusing on Paula. Paula has made what, based on the initial information that is available to you, a well founded complaint of sexual harassment. For purposes of this example, let’s assume that Paula’s complaint is against a manager (Mike) in another department with no supervisory authority over her. Specifically, Mike has been sending highly inappropriate e-mails of a sexual nature to Paula on the company e-mail system. We have no reason to believe that Paula’s supervisor is aware of Mike’s e-mails.

Pretty straightforward so far right? This is not a “he said, she said” situation with the challenges that go along with those. You should be able to establish that the e-mails do or do not exist, evaluate them, and take the appropriate actions in response.

Complications

What makes this complaint more complicated is that Paula is on a written performance-based warning. She is a telephone customer service representative, and her supervisor Sara has been trying for some to get Paula to improve what Sara thinks is subpar customer relations skills. It is not an issue that has warranted termination yet, but Paula is a weak performer who does not seem to improve, and knows she is not far from termination.

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The company probably would have fired her already, but Paula’s prior supervisor’s evaluations and written documentation were not quite as strong as we would have liked, so we want to be sure it is clear we have given her every chance to succeed. We literally were planning to meet with her this month to evaluate her progress since the last discussion about her performance.

Investigate Every Complaint

Let’s start with the easy part – of course we have to investigate Paula’s complaint. The obligation to provide both Paula and other employees with a working environment free from such unwanted e-mails is non-negotiable. And as described above, we have made that scenario fairly easy.

Mike will receive whatever disciplinary action is warranted based on the egregiousness of the e-mails, reasonable steps will be taken to minimize the likelihood it will happen again, and a resolution will be communicated to Paula, including an open invitation for her to let the company know immediately if there are further issues.

Risk of Retaliation Claim

Of course, Paula’s complaint raises the potential of a retaliation claim for any job action against her.

Paula has placed herself in the legally protected class of people who have complained about unlawful conduct. By mere proximity in time, any disciplinary action against her carries with it some risk that she will claim the disciplinary action was motivated by her harassment complaint. Her performance issues, while quite real, are somewhat subjective in nature so leave room for debate, and as noted the file is not as solid as we would like.

Managing the Risks

There are at least three critical aspects of managing the inherent retaliation risks associated with taking action against Paula. One is to manage Sara. Sara will need to hear about Paula’s complaint, and she will be livid. Sara already feels like you are holding her back on getting rid of an employee who is dragging her team down, and she will see the complaint as potentially delaying the appropriate inevitable termination. (More on that below.)

It is critical that we keep Sara from making angry communications – to Paula, to Mike, to HR, really to any non-legal personnel (i.e. communications with legal personnel will likely be privileged, anything else is discoverable).

With very few exceptions, it is advisable to communicate first with Sara in person rather than sending an e-mail in effect inviting an angry e-mail in response. Sara needs to understand that achieving the business goal of optimizing her team’s performance will be much more easily accomplished if you deliberately manage the situation together.

Second, with Paula, it is important to carefully craft communications to avoid any suggestion that the two situations – the harassment and the performance – are linked. Generally this will mean keeping the two tracks separate. Because they are.

However, there is a point where it may seem contrived to completely divorce the two situations. For example, as noted there is an imminent performance discussion to be had with Paula. If you do not interact frequently with Paula, it could seem almost suspicious to communicate with her separately about the two situations very close in time when you rarely have occasion to communicate with her. In such a circumstance, it may be advisable to acknowledge the existence of the dual situations, and specifically note their separateness:

Paula, we have two separate things we need to discuss. One is that I need to follow up with as quickly as possible about your complaint about Mike. Second is that as you know, you and Sara and I have to schedule our discussion about your performance. Let’s take care of the situation with Mike first, assuming we can get through that fairly quickly, we can schedule the other meeting soon after that. Okay?

Each employee scenario is a little different, but these seemingly minor communications can become critical as they get picked apart in a retaliation case, so it will be advisable to walk through them with your regular employment counsel to strike the right balance on these communications.

Finally, do you slow down on personnel actions against Paula because of this complaint? The answer to this question will also vary with each situation, and again you should discuss it with counsel. We would like to think that the two issues can be kept entirely separate, but the truth is Paula’s termination does become higher risk because of the complaint. Whether we like it or not, it may affect your timing.

In the scenario described here, defending the termination is not a slam dunk – there are subjective aspects to the decision, and less than optimal documentation of past issues. Terminations under those circumstances are somewhat trickier than those involving more “measurable” issues and/or with a strong history of documentation.

In short, the combination of what seem to be two relatively straightforward situations creates complications greater than the sum of the parts. Your team needs to carefully work through it to minimize risk to the company.