Me, too!

Put your seatbelts on, it’s going to be a rocky ride – it just got a little easier for a plaintiff to make his or her harassment case.

On August 9, 2011, the California Court of Appeal ruled in Pantoja v. Anton (No. F058414), that a plaintiff may present evidence the defendant engaged in harassing conduct towards others to make their case even if the conduct occurred outside of the plaintiff’s presence and at times when the plaintiff was not even employed.

This case has many implications with the most significant being seemingly unrelated conduct will now go into the plaintiff’s bucket of evidence.  The example I use in my harassment training is that I look at everyone in the workplace as having an invisible basket on their back.  My hope for everyone is that only good things go in that basket – compliments, rewards, acknowledgements of solid performance.  Alternatively, the basket can be filled with harassing, derogatory or discriminatory comments, inappropriate jokes, touches and a variety of other “unwelcome” conduct.  If the basket gets too heavy, the employee, or shall I say the soon-to-be plaintiff will have an easier time making their claim because they will have satisfied the “severe or pervasive” prong of the harassment cause of action.

The Pantoja case helps that basket get filled faster and with potentially more dangerous evidence.  Remember who sits on a jury: twelve pissed-off employees.  So, the more evidence the jury sees that the defendant – your employee – engaged in a pattern of bad behavior, well, you know how the story ends.

Here are a few tips to minimize risk:

1.   Investigate complaints even if someone did not experience the harassment first-hand.  Often HR professionals or investigators will not investigate a complaint where the witness did not experience the harassment first-hand.  Big mistake.  Remember, once you learn of inappropriate conduct you are on notice.  Investigate all claims whether first-hand, second-hand or rumor.

2.  Pay attention to those who have witnessed harassment. During the course of your investigation in you gather information that several witnesses observed the inappropriate conduct.  Or heard about it.  Remember to follow-up with these witnesses periodically to make sure they have not been the recipient of the unwelcome bad conduct themselves.

3.   Stop the bad behavior.  Don’t ignore complaints because you may not trust the complainant, or you think the complainant is a whiner.  Whiners can spend your settlement money just as easily as a more credible complainant.  Don’t ignore complaints against rainmakers, those in the “C” suite or those who wield power.  The law doesn’t say you have to fire everyone that has misbehaved – you must stop the bad behavior and make sure it doesn’t happen again. Protect your employees and create a safe and respectful workplace.

If you have any questions about this case, or need any help with investigations or training, please give me a call.

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