Legally Speaking With the Constitutional Law Center for Muslims In America Handling Employment Complaints Tactfully and Lawfully

Civil Rights
Typography

[Note: This is the first legal column in a regular installment designed to make American Muslims, masjid leaders, and imams aware of how US laws impact our faith and community. The column is provided to readers through a partnership between the Muslim Link and the Muslim Legal Fund of America (MLFA). -- TML]

There’s a knock on your door from an employee alleging discrimination.  The employee doesn’t want to cause a problem, and asks you not to say anything.  But, the employee is definitely uncomfortable, and mentions that a supervisor (who just gave that employee a poor review) made comments when no one else was around, that made this employee uncomfortable.  After talking awhile, the employee asks you again to please not say anything, thanks you for listening, and says that maybe it will work out.

Problem solved?

Probably not.  Often, exactly this situation leads to a courtroom and justifications later on, despite good intentions at the time.  Employers from Abercrombie & Fitch, to Disney, to federal agencies, find themselves defending what they thought at the time were insignificant allegations.  If that knock on the door happens, employers need to be prepared to address the situation, in a consistent way, so they don’t become the subject of discrimination claims.  Or, they need to prepare themselves to best defend themselves if these complaints do arise.

There are many federal and state laws in play.

Many different laws are play here, and they vary from state to state.  California, for example, has several state-specific employment protections that go beyond federal law, while others like Texas do not.  For the most part, there are consistent requirements that are good to know regardless of in which state a business has offices.

A little framework goes a long way.

Setting up the right framework helps when issues arise.  Most states, and federal law, require that employers have policies to address employee complaints.  These policies should be written, not just stated at staff meetings (though that helps also).  The policies should clearly state that discrimination of any form is not allowed, and all complaints will be promptly investigated.  Also, employees need to know that acting out against someone who has made a complaint, or retaliating, is prohibited.

These policies are best as part of the new hire process, and in the employee handbook.  There should be an acknowledgment page for employees to sign, either on paper or electronically, recognizing they received this policy and are aware of it.  And, regular training of employees, especially front line supervisors, greatly reduces discrimination claims and at least educates employees on how complaints are handled when they arise.

Treat the employee, and the complaint, with respect immediately.

It’s tempting to respond to knocks on the door by dismissing the complaint as unjustified whining of poorly performing employees, or unfair attacks on strict managers.  But those are exactly the traps that lead to costly verdicts years later.  Everyone likes feeling respected, especially in the workplace where people spend so much time.  Initially taking the complaint seriously goes a long way to address employee concerns.

Even the best employee in the office needs to be investigated, if a complaint comes that way.  And the poorest performing employee is entitled to work without harassment.  Showing consistency and care in handling allegations by both employees gives the employer credibility, and reassures other employees that their own possible complaints will be worthwhile.

Complaints come in many forms, and need to be treated the same way.

Some companies have formal complaint documents.  Some employees even use those.  But that’s not legally required, and when complaints come via ranting email or unexpected hallway conversations, they still count.

Remember our opening example? An employee may ask that nothing be done, or complaints be kept confidential, and just ask to vent.  This is a dangerous trap.  Once members of management, even front line managers, hear complaints of discrimination, the company must act.  Later, that attempt to honor a hesitant employee’s request for discretion can look like dismissive judgment or an attempt to protect the target of the complaint.

These complaints range from failing to accommodate religious preferences, like prayer time or dress code compliance, to unequal treatment of one gender, to inappropriate comments based on things like sex or race.  These complaints all require attention, as do the employees making them, and can all be handled professionally with relatively few workplace disruptions.

The best way to investigate an actual complaint is…..

Navigating these complaints is tricky, but doable.  The most important aspect is that employees need to feel heard.  Make sure the employee has a full opportunity to speak, unstructured as it may be.  Then, the employee should write down the complaint.  Handwritten complaints are actually as good or better than typed ones.  With well-worded emails or typed complaints, there is the risk of a later argument that the employee was told what to say, or the complaint was edited.  This is not so with handwritten pages on a yellow pad of paper.  There are still times that low tech can have high rewards, and this is one of them.

Promises of complete confidentiality are nearly impossible to keep.

As in the opening example, many employees want their complaints kept in strictest confidence and not shared with others.  This, however, is difficult if not impossible to do in a good investigation.  No one likes to be accused without knowing what the accusation is; the employee who is the target of the complaint needs to have a chance to respond.  This can be done tactfully, and often through general interviews that involve open-ended questions instead of specifically targeted ones.  But talking to other employees who may have seen or heard the harassment, and the person accused of behaving poorly, is crucial to the investigation being sincere.

Assure the employee that there won’t be any retaliation going forward.

Remind all involved that there is no retaliation.  This fights human nature, so if possible moving employees to different areas is helpful, even if no fault was found.  Be careful, though, of appearing to isolate a complaining employee, and be more vigilant for future complaints about the same workers.

Doing these things won’t guarantee harmony at work, but will give all employees reassurance and predictability, as well as better defenses if the courtroom does come into play.

Christina Jump is a Senior Staff Attorney at Constitutional Law Center for Muslims in America (CLCMA), a nonprofit law firm funding through a generous grant from Muslim Legal Fund of America (MLFA). Learn more at clcma.org and
mlfa.org.