Employers: Take Action Now!

The continuing saga of the Jerry Sandusky case serves as a grave reminder. Employers that do not act the moment that troubling information arises will lose the ability to protect themselves against complaints and lawsuits later via the defense: “we had no idea that there was a problem.”

There is evidence that as early as 1998, the Penn State police (not the town’s police dept) received a memo from a local psychologist about inappropriate behavior on the part of Jerry Sandusky. One of her young clients said he was inappropriately touched by Sandusky. The psychologist said that Sandusky showed a pattern of behavior similar to that of a pedophile. Yet Sandusky wasn’t reported or fired in 1998. It took 13 years and many more alleged victims, and a huge public scandal, before Penn State University took definitive action. More information is now coming out regarding what several high-level officials knew, including an email in which the former university president stated that it would not be “humane” to report Sandusky to the authorities. This has cost the university more than just its reputation. It has cost several high level employees their jobs, and will most likely cost millions in settlements with alleged victims.

How can employers avoid problems?

Employers need to put into place an action plan to deal with all types of information that comes to the attention of all employees. This is best done before any potentially problematic situations surface, when it is easier to be calm and clear-thinking. If any information arises that might be damaging, the employer’s decision-makers need to know, ASAP, and all employees need to learn how and where to report the information, and without fear of reprisal.

Managers and supervisory employees who learn about or witness problematic behavior must take action in order to protect the employer from liability. In 1998, the U.S. Supreme Court issued decisions in two similar cases that directly addressed when an employer is liable for workplace sexual harassment.
As a result of these cases, the Court determined that employers are responsible for the actions of their supervisors, meaning that the supervisors are like a legal extension of the employer. The law calls this “vicarious liability.”

Employers can protect themselves from large lawsuits and bad publicity by following several steps. This involves working up-front to prevent harassment and other inappropriate conduct.

1) Creating a strong policy against harassment, discrimination, assault, etc. is the first step.

2) Making sure that all employees in the company know of the policy is next.

3) Teaching all employees about their rights and responsibilities pursuant to the policy is a major component.

4) Managers and supervisors also need to know how to handle situations that they witness and/or hear about through other sources.

Had the Penn State police reported what they learned about Jerry Sandusky back in 1998, and a thorough, unbiased investigation occurred, and had the powers-that-be acted appropriately upon getting the results of the investigation, it is possible that the university could have protected its reputation. By taking swift action, the university may have spared even more boys from (alleged) inappropriate contact. Firing Sandusky, reporting him to the proper authorities, offering assistance to the (alleged) victims, and providing mandatory training to all managers, supervisors, and other employees that come into contact with minors, would have been a pro-active response that might have led to an entirely different outcome.

Granted, the Penn State example is an extreme one. In many situations, employers deal with complaints of alleged inappropriate conduct that involve non-criminal actions. The complaints are often about some form of discrimination and/or harassment that may seem minor to the managers. Regardless of what a manager may feel about the complaint, the person who is complaining is bothered enough to say something. Since many people who are harassed often stay silent and hope the problem will go away, employers need to understand that those who complain often go through a difficult thought process before coming forward. Taking all of these complaints seriously is only the first step.

Invest a little now, or pay big later!

In a tight economy, employers often cut training programs for their staff, since this is often seen as a “luxury.” But when it comes to informing employees about how to report potentially inappropriate workplace conduct, and teaching supervisors how to handle these situations, training often ends up saving employers in terms of morale, reputation, publicity and the bottom line.

The old saying, “Don’t be penny-wise and pound foolish” is true in this situation. Hoping that uncomfortable or difficult situations will eventually just disappear will actually lead to bigger headaches. In the long run, “doing the right thing” is also the smartest, most fiscally-sound action an employer can take!

Dana M. Pearl is the President and founder of The HUMAN Organization, Inc., an EEO consulting business that provides training programs for all sizes and types of companies and organizations in Illinois since 1992. She is a former EEOC investigator and a former HR Manager in both manufacturing and non-profit concerns. Ms. Pearl earned a BA from Northwestern University and a MBA from Loyola University. She conducts awareness and prevention training programs on various types of employment discrimination and harassment in both Spanish and English. She can be reached at 847.869.9516 and dana.pearl@humanorganization.com and via the website at: www.humanorganization.com.