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AVOIDING LAWSUITS HOW BUSINESSES CAN PREVENT March 1, 2002 Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C. FAILURE TO TRAIN MANAGEMENT TO PROPERLY If you need any more convincing about the importance of having an appropriate sexual harassment complaint policy, and making certain that your management is trained on what it says and how to utilize it, consider this . . . A female employee claimed that her immediate supervisor subjected her to vulgar jokes and sexually-explicit conversations, berated and intimidated her, and had even gone so far as to summon her to his home for a performance review - clear sexual harassment. Eventually, the employee told upper management. Upper management gave the employee some instructions on how to deal with the harassing supervisor, but did not tell the employee that the company had a complaint procedure that might help her, and took no other action. In fact, upper management told the employee that she would not want to have a complaint against her supervisor in her file because it could make it difficult for her to get a future promotion. Ultimately, the employee filed a complaint with the company, and the harassing supervisor then gave her the predictable poor rating. The company eventually fired the harassing supervisor as a result of the employee's complaint, but also fired the employee, in view of her unfavorable evaluation. Standard procedure in any company must include the establishment of a complaint procedure that complies with the law, the distribution of that complaint procedure to employees so that they know how to take advantage of it, and professional training of management so that they know what to do when an employee invokes the complaint procedure. In this case, the employer - a major drug company - had a complaint procedure, but it only distributed it to its managers, and not its employees. If it had trained its managers on the proper way to respond to a sexual harassment claim, the training was obviously ineffectual. The result in this case was a lawsuit by the employee based not only upon standard sexual harassment principles, but also claiming intentional infliction of emotional distress. The result: a jury verdict awarding over $800,000 in lost pay, $1 million for mental anguish, and $8 million in punitive damages. An appeals court in Texas recently affirmed the award. The court opined that when a company's management has not been trained to invoke and apply an appropriate complaint procedure in these kinds of situations and, instead, allows a harassing supervisor to evaluate the harassed employee's performance to the point where the employee is terminated, such an award is justified. We know we have sent previous messages to readers of Avoiding Lawsuits dealing with the importance of training management in basic employment law principles, but we're only stressing what the courts are stressing. A few years ago, the Supreme Court changed the rules that relate to an employer's liability for the actions of its managers, and the lower courts are now beginning to lend definition to this new legal landscape. The upshot is good news and bad news: the good news is that if you regularly train management employees, and if you establish and consistently implement certain key employment policies, you can escape or minimize liabilities; the bad news is that if you don't, punitive, and not just compensatory damages, may be the result. Let us know if we can help.
IS EMPLOYEE TESTING LEGAL? Many employers test prospective employees to determine their qualifications, personality traits, and likelihood for success. Is it legal? It depends. First, many courts have ruled that some employee tests are likely to uncover a mental disorder or impairment and, therefore, are "medical tests" that are regulated under the Americans with Disabilities Act, just as would be a test to discover a back problem or a hearing impairment. Basically, the ADA says that an employer cannot require medical testing before making a job offer, and that after a job offer is made, the employer may require the applicant to take a medical examination only if everyone in the same job category takes the same examination. If the individual is not hired because the medical examination reveals the existence of a "disability" (which, as defined by the ADA, could range from anything from depression to dyslexia) or, more important, if the employee can make a case that seems to prove that's why he was not hired, the employer must be able to show that the reasons for not hiring the employee are job related and consistent with business necessity, and that there was no reasonable accommodation that would have made it possible for the individual to perform the essential functions of the job notwithstanding the disability. Second, even if the tests are not likely to expose ADA-defined "disabilities", many employee assessments venture into areas which are not job related, or which elicit information concerning sex, race, age and other subject areas protected by federal employment legislation. Risks are raised by those tests as well. Third, even if a test is otherwise compliant, care must be taken in how the test is applied. For instance, testing on math skills might be appropriate for prospective accountants, but not for prospective custodians. The way in which the test itself is administered and used may be viewed as discriminatory. All of that aside, employee assessment tools can provide employers with valuable information. Consider the following precautions, however, before instituting a procedure:
___________________________________________________________________________________ Counsel Consulting Group LLC helps companies throughout the Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com. ©Copyright 2003-2005 CCG Properties LLC. All rights reserved, except that recipients hereof are permitted, for noncommercial purposes, to provide copies or excerpts, with full attribution to us, to other interested persons for their personal use. Avoiding Lawsuits is distributed for general informational purposes only. It is not a substitute for personalized legal advice from a competent attorney. |
