Workplace Harassment – Lack of Contemporaneous Notes
How many times a conversation that began as a simple workplace humor, turned into a severe harassment? Harassment that sometimes escalated to a retaliation. It is estimated that a major portion of our life is spent in our workplace, which makes it one of the most important part of our life. In our work life we face a lot of work related issues, of which harassment of any form by a colleague, senior or junior is very common. A number of people in any organization experience work place harassment which may be demeaning, bullying, authoritative, abusive or sexual. It is noted that 9 of 10 people do not report any kind of misconduct that may have happened against them, suffering silently in humiliation and hence, resulting in loss of productivity in majority of the cases. This may have an overall impact on the organization. It is essential for any company to maintain and distribute an anti-harassment policy which clearly incorporates and states the complaint procedure for employees who can complain about any case of harassment or discrimination.
Perhaps, it is important to know what defines workplace harassment in first place. According to Wikipedia, “Workplace harassment is the belittling or threatening behavior directed at an individual worker or a group of workers.” Harassment can be in verbal, physical or written form, which may cause some form of discomfort to the victim as a result of which, may lead to anguish, emotional, physical or economical suffering. It could be on any type. It could be sexual harassment, or harassment in the form of mocking or offensive jokes because of disability, or racial harassment in the form of slur or joke due to color of skin or race, or it could be anything related to physical intimidation or hostility or insults etc. Workplace harassment is irrespective of gender, race, age, position in the company. In cases where the company itself denies basic rights like promotions or benefits to an employee, it can be categorized under workplace harassment and be pursued in the court.
Before going to court, you will normally contact the EEOC which is a Federal agency in the USA that enforces employment laws that prohibit discrimination in the workplace.
Many people ask: What is the EEOC and can it help me?
The quick answer is Yes, but you need to know what steps to take to ensure your evidence is clear, concise and accurate. But most importantly, that you can PROVE when you made a note about the incident.
A contemporaneous note making of each and every detail of the harassment against an employee helps her/him to establish that such incident occurred. When any case of bullying has taken place against you, it is advisable to “Always create a written record describing the exact behavior, date, time and place where it occurred, and who else was present” as stated by Joseph Cilona, a Manhattan-based licensed clinical psychologist, business and personal coach and author. He also continues to say that, “Should things escalate, or official or legal consequences arise, written documentation will be the most important thing you can have to protect yourself and your job. If it’s not documented, it might as well not have happened.” In continuation to that, one copy should remain with the employee and one copy should be provided to the HR Department or employee’s senior. These notes will help the employer, who was not present while the incident occurred, to take appropriate action, as the employer is more likely to trust your documented account than a memory based account of the other party. That is why, it is very important that the complainant has the full documented narrative of the facts that led to the complaint including the company employee/ employees involved, the witnesses to the incident if any, the precise nature of discrimination and any additional comments. It should be duly signed and dated. Anything which is documented can be used in the litigation purposes against the person who harasses.
Work place harassment of any kind is a sensitive issue for a company as it is its responsibility to see that everyone works in peace and that any harassment should not lead to retaliation or self-harming or depression. Once brought to the notice of the employer, proper investigation should take place to find out the reason behind the complaint and what action was taken to assuage the situation and comfort the one who was harassed, if his/her complaint turns out to be genuine. The investigation that is conducted as a result of the complaint should be made into a formal document and have full details of when did the complaint appear in front of the employer, was anyone interviewed, what was the outcome of the interview, what was disclosed, when and where did the interviews take place, in whose presence, what disciplinary or remedial action was taken, what was the reasoning behind taking such action etc. All this needs to be properly noted down. Written documentation is preferred, should the case progress to court of law. Also, a documented proof doesn’t move away, die, forgets or change its mind, which a human mind could.
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Sometimes, a worker develops a cold feet when complaining about a harassment case. This most commonly happens in the cases of sexual harassment. In a case of Equal Employment Opportunities Commission(EEOC) v. Caterpillar, at United States Court of Appeals, Seventh Circuit, several woman of the company claimed that the company did not take up any action against their pleas of sexual harassment. A woman by the name of Virginia Early claimed that she notified the HR about the sexual advances of a security guard. In the HR reports, it was mentioned that Early wanted a transfer but she did not identify the alleged harasser. She sued the company after getting the transfer. Her claim was dismissed as there was inconsistency in the notes and her version of the story. Early failed to mention the specifics to the HR or maintain her own notes about the exact details of the case. Any inconsistencies in the notes makes the deciding authority skeptical of the intentions of the complainant. That is why the accuracy and authenticity of such notes is very important. The notes of the incident or the series of incidents and the process that followed should always be taken contemporaneously. Any note-making that starts long after the event has occurred or after a lawsuit has been filed is considered memory based and is far less reliable than a note that was taken right at the time of the event.
It is advised to keep your contemporaneous notes in a safe place, which is inaccessible to other people. It is preferred to keep it in a non-editable digital format, which minimizes the chances of it being misused or changed by anyone. Each and every detail that can be captured in the form of emails, written notes, letters etc should be documented. As a result of any harassment, if you feel distressed due to any kind of physical or mental pain, document it and write about it to your employer which will form an excellent case in favor of you. In case of any visit to the doctor due to the same, keep all the medical receipts and write about this to your senior to let him know the exact situation. If in worst case, you have to leave the organization because of harassment, write an email to your employer giving your resignation and in that, specifically mention the reason of your resignation and the name of the person who harassed. It may prove helpful in future.
Even the employer should make contemporaneous notes, as soon as an employee approaches them after first instance of alleged harassment. That way it can be proven by the employer or the company what was in their knowledge, when they learnt of it and what disciplinary action was taken. The employer should keep all the employees aware of company’s policies in written format. Between the contemporaneous notes of harassed employee and the investigators, lie the crucial documents of the company’s HR or any concerned personnel, which contains crucial link between the two, and may sometimes act as a crucial evidence to cross check the claims made by the complainant.
Working in an organization is a two-way street, but often the person at lower designation is at a greater risk of being harassed by the senior employees or colleagues. At that time, contemporaneous note-making could be a boon to save you and may be others from the snares of a wrongful harasser.
American Bar Association, (2008) Properly Investigating Complaints of Harassment. Retrieved from, https://apps.americanbar.org/buslaw/blt/2008-09-10/tremblay.shtml
American Bar Association, (2008) Conducting Investigations of Wrongful Workplace Conduct. Retrieved from, http://apps.americanbar.org/buslaw/blt/2008-05-06/ginsburg.shtml
About Careers, Dealing with workplace Harassment. Retrieved from, http://legalcareers.about.com/od/careertrends/a/Dealing_With_Workplace_Harassment.htm
Business Management Daily,(2009) What would you do? Employee claims harassment but won’t identify the alleged culprit? Retrieved from, http://www.businessmanagementdaily.com/9881/what-would-you-do-employee-claims-harassment-but-wont-identify-alleged-culprit
CONDUCTING AND DOCUMENTING UNLAWFUL HARASSMENT INVESTIGATIONS by Dennis D. Grant, Esq. Retrieved from, https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=6&cad=rja&uact=8&ved=0CDgQFjAFahUKEwj88ouT2Z7IAhUXBo4KHc5lDaE&url=http%3A%2F%2Fwww.baileycavalieri.com%2F61-Unlawful_Harassment.pdff.pdf&usg=AFQjCNEmTD6CW-Lev-dXoEXbLchLeIGmjQ&sig2=tJt_9F1z5jDr2XSQZUBHSQ&bvm=bv.103627116,d.c2E
Find Law for legal professionals. Equal Employment Opportunity Commission v. CATERPILLAR. Retrieved from, http://caselaw.findlaw.com/us-7th-circuit/1410251.html