In my 30-plus years of defending employers, I’m sure I have deposed and cross-examined most of this university’s alumni. The existence of PU is proved through the refrain universally heard in employment cases: "I read the policy, I acknowledged I read the policy, but I didn’t understand the policy and I was afraid to follow it even if I understood it."
It is a mystery to me how someone smart enough to get through school (grad school, in some cases), apply for a job, get a job, understand the basics of employment law and civil procedure and find a generally competent plaintiffs’ lawyer is unable to read and understand an employer’s most basic rules: "We do not tolerate harassment. All harassment must be reported promptly. We will not retaliate against employees who complain."
It is imperative for the employer to have an "adequate complaint machinery" to avoid liability for harassment and discrimination under Title VII. But employees trained at PU invariably dodge their responsibility for prompt reporting of harassment by framing their lack of understanding of the policy in such a way that their failure to complain somehow becomes reasonable. Here are some of my favorite excuses:
- "I signed a whole bunch of paper when I started working, but I didn’t read any of it because the supervisor wanted me to begin work immediately."
- "I did not read it, I just signed it in order to get the job and I had to have the job."
- "The company gave me a copy of the policy, but I had no idea where to complain if there were problems."
- "I read the policy and signed it, but I didn’t understand what it meant."
And here’s some typical deposition testimony by a PU alum in a harassment lawsuit:
Q. Did you ever report the incident in which Mr. Harasser rubbed himself against your backside?
A. No, I didn’t.
Q. Why didn’t you?
A. I really didn’t think anything would be done about it.
Q. Were you aware the company has a sexual harassment policy?
A. I know they had a little book.
Q. Did you know if the policy prohibited sexual harassment and retaliation for complaining?
A. No, I did not know that.
Q. When you started your employment, did you receive any type of training on sexual harassment?
A. I was given something called a code of conduct.
Q. Did you ever sit down with anyone at the company and talk about what constitutes sexual harassment?
A. I don’t believe I did.
Q. At some point did you become aware there was an 800 number you could call to complain about harassment or retaliation?
A. I do remember people talking about it, but there was a lot of paper posted everywhere and I can’t say I read everything.
Q. Did you have an understanding as to what the 800 number was for?
A. As I remember, it was for reporting safety issues. Or something like that.
An employee’s ability to disclaim knowledge and understanding of an employer’s harassment and reporting procedures boosts his/her chances of a successful lawsuit in any number of employment claims, including sexual harassment, implied contract cases, retaliatory discharge, employment contract cases where "for cause" is an issue, and in unemployment claims where breach of a duty owed an employer is frequently center stage.
Sometimes, employers (such as the Wisconsin defendant/employer named in a very recent case involving a restaurant supervisor’s harassment of and retaliation against a 16-year old high school student) have a special class of workers who may have understandable difficulty understanding the company’s policies.
In EEOC v. V&J Foods, Inc., the 7th Circuit Court of Appeals noted that the "complaint machinery" must be reasonable and "what is reasonable depends on the ‘employment circumstances’ … and … on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable."
The court noted that while employers are not required to tailor complaint procedures to the competence of each individual employee, the company in this case, (which hired large numbers of part-time teenage workers), was "obligated to suit its procedures to the understanding of the average teenager."
The court criticized the company for adopting complaint procedures "likely to confuse even adult employees" (EEOC v. V&J Foods, Inc., 7th Circuit, 11/7/07). The court also chided V&J defense counsel who tried to take the position that a policy understood by a 40-year-old worker could be understood by an entry-level 16-year-old. The court wrote, "[I]t would cost very little, certainly for a company of V&J’s size, to create a clear path for complaints of harassment," and "V&G has presented no evidence at all about the cost of adopting and administering an effective complaint machinery."
So here’s my holiday gift to employers. It’s simple, it’s inexpensive and it works:
Develop a clear, unambiguous anti-harassment, anti-discrimination and anti-retaliation policy. Write it to the level of a 16-year-old accustomed to staring at video games and shopping at the local mall.
Prepare an acknowledgement to be signed by every employee, acknowledging they have read and understand the company’s policies. The operative word is "understand."
Put together a "driver’s license" test that quizzes employees on the significant points of the policy and give the test to new employees as part of orientation. The test can be as simple or elaborate as you like (a typed question-and-answer format with the employee’s handwritten answers—just like high school—or an interactive computer program), but test the employee’s knowledge. If the employee has wrong answers, go over the policies again and test again. And again. And again, if necessary, so no one can ever say (well, they might say it, but I’ll defend that case any day), "I didn’t understand."
Enjoy your gift of a liability-free 2008! Happy holidays!