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How Not To Handle Harassment Claims

Via LinkedIn : It is a rare event when one comes across sexual harassment allegations by a little elf, hotly asserted denials by Santa, and a police arrest that can serve as a great example as to how an employer can get things so ho ho horribly wrong….

Not too long ago, I came across just such a case as summarized in what appeared to be an actual police report. It is an excellent example of what would seem to be a plaintiff attorney’s Christmas list come true. This odd tale unfolds as follows.

What Reportedly Happened?

Once upon a time, there was an elf who helped Santa as he posed for photographs in a mall. Our little elf, all we really know is that she was over 14 years old, reported the following to local law enforcement:

One fine day, just about Thanksgiving time, Santa allegedly copped a feel as the elf was walking past Santa’s chair. Although shaken, she made no immediate comment and Santa presumably continued on his merry way of being photographed with children. Our elf then told her manager what happened and subsequently went into the mall on a meal break. Shortly thereafter, the manager located our elf and informed her “Santa wanted to speak with her.” Although the little elf was understandably nervous about speaking with Santa, and presumably communicated such to her manager, she agreed to do as asked. Or, as her lawyer is probably now saying, she was forced into a confrontation with the perpetrator during her unpaid meal period.

Upon meeting up with Santa, he began acting in an un-Santa-like manner by proceeding to yell at her as he denied the allegations. The elf then notified her supervisor that she was quitting the merry band (her job) and departed the scene. Or, as her attorney is now likely alleging, she was retaliated against and constructively terminated, as no reasonable person could be expected to tolerate this hostile work environment after having reported a sexual assault. Interestingly, this was not the first time Santa had allegedly misbehaved. According to our little elf, he had previously told her “I wish you were a few years older and I was younger” and he had also made a remark about his third wife. We can only speculate as to why Santa had three wives.

Having received little support from her employer, our elf next reported the assault to law enforcement. The police investigated by obtaining a statement from another little elf who had been identified as a witness. Or, as the elf’s attorney is likely saying, the police then did what the employer should have done—it obtained witness statements. In any event, she confirmed she had seen Santa reach up toward the area of the other elf’s behind but did not know if he had touched her buttocks. She further indicated the reporting elf had told her that “Santa had pinched her butt.” This other elf was so bothered that she also quit that same day. Or, as her attorney is probably now saying, she saw how the first elf was treated and feared that both Santa, and the company, would do the very same to her. So, she was likewise subjected to a hostile work environment and, fearing retaliation for having spoken with law enforcement, she was left with no choice but to also quit. I’m just saying….

The police further investigated the events of that one fine day by interviewing the elf’s manager. In relevant part, the manager confirmed she had received the harassment report and spoken with her supervisor, who had directed that the elf was to speak directly with the accused. The manager also confirmed that the elf quit right after this wonderful kumbayah moment. Or, as the elf’s attorney is probably now saying, the company retaliated against the young elf by inappropriately telling Santa of the allegations and then forcing the elf into circumstances whereby he could yell at and attempt to intimidate her. The elf’s attorney is probably also saying this proves the company lacked a system to protect little elves who desperately needed to make harassment reports. In any event, the manager also informed the investigating officer that the elf was unhappy because she had been asked about missing money earlier that same day. The typically unprovable inference being the harassment claim was false because the elf might be, or was suspected of being, improperly in possession of company assets.

When approached by the police, Santa promptly exclaimed, “I did not touch that girl.” He then later asserted it was the elf who had “walked by and brushed her buttocks against his hand” and that he had tried to avoid the contact. Santa then further complicated matters by saying he was uncertain if it had been the elf’s buttocks which his hand had touched. Santa also acknowledged he had made a comment about wanting to be young again but essentially claimed it simply had to do with making better decisions in life. Santa was arrested for indecent assault and battery.

In tomorrow’s Advisor, Drelling explains how this holiday complaint should have been handled ….

What Should Have Happened?

If the company had properly handled this harassment report, it probably could have been easily resolved. However, since the employer couldn’t get it right, the elf was left with little choice but to turn elsewhere for help. So, let’s take a look at a few of the ways that this complaint could have been better handled.

First, when the elf made the initial complaint, she should have been given better attention. The manager should have let her know the company takes these complaints seriously and obtained a written statement from the elf. This way the elf’s version of events would have been documented and an investigation properly commenced. Additionally, human resources should have been promptly notified.

Second, Santa should not have been permitted to continue taking photographs with children. He should have been promptly removed and replaced with a look-alike from the North Pole. Why? Because once aware of the allegation that Santa had inappropriately touched the elf, the company had a duty to protect other employees, patrons, and minor children who might come into contact with Santa. This failure to protect unnecessarily subjected the employer to additional levels of legal exposure. Note that the suspension of Santa is not a determination of wrongdoing. Rather, it merely stabilizes the situation while the actual facts are being explored. Furthermore, it also protects the accused from yet further allegations of wrongdoing.

Third, individuals reporting harassment are not to be compelled, or pushed, into confronting the accused. This is especially the case when the accused is in a senior position. Furthermore, and as a historical point, it has been almost 40 years since the EEOC took the position that this is not the proper way to handle an investigation. Following this technique has a high potential of generating a bad result while, at the same time, demonstrating to the EEOC that the company has failed to properly train its personnel. Keep in mind that even when the accuser agrees to the meeting, if it does not go well, they can still claim they were pushed into it and wanted nothing to do with that process.

Fourth, the other elf, and any other employees who were present, should have been interviewed by the company. But, from the information we have, it does not appear that any other interviews were conducted beyond the one where Santa was verbally notified of the allegations. If the manager was going to interview Santa, it would have best been done after she had interviewed other witnesses so he would be questioned only after the manager had a fuller grasp of the facts. Additionally, it does not appear any written statements were obtained—at least not by the employer. The failure to obtain signed, written statements leaves individuals free to later modify their stories and also makes it difficult for an employer to defend itself in the event a lawsuit is filed. In any event, and unfortunately for Santa, the police did perform their job and, despite his best efforts, Santa was unable to avoid being arrested.

Although we do not know how this tale ended, we do know that the company could have better handled this sexual harassment report. Had the company done a better job, this situation might have become an example of how to easily document, and resolve, a harassment complaint. Instead, it resulted in:

  1. The elf having no choice but to seek outside intervention;
  2. The company being exposed to potential liability if Santa is accused of inappropriately touching other persons after the complaint was received;
  3. The company being exposed to a harassment, retaliation, and/or constructive discharge (unlawful termination) lawsuit by one or both of the elves;
  4. Two elves quitting; and,
  5. Santa being arrested.

The moral of this story is to properly train your personnel and ensure that they comply with that training. Personnel should be taught to immediately notify their human resources department upon becoming aware of a complaint sounding in discrimination, harassment, and/or retaliation. Once notified, the company can intervene and ensure that everything is properly handled and documented. Remember, if it wasn’t documented, then it just didn’t happen—at least not for the EEOC and the trier of fact (read: judge/jury).

Francis Drelling serves as general counsel of the Restaurant Division at Specialty Restaurants Corporation.

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