When you spend the better part of your professional life examining employee complaints, the subtleties of handling those complaints become a big deal. I have written often in this blog about the importance of handling these complaints properly; listening carefully, not debating or pressing; avoiding laying blame and asking open-ended questions. Most importantly, I have described the importance of accepting the “gift” of a complaint by thanking the employee for their trust and willingness to bring it to your attention. These fundamental practices can make the difference between an employee who remains engaged and one who becomes an adversary.
What I have discussed less is the misunderstanding that seems to persist among many leaders –at many levels — that acting on employee complaints is optional. In the past several weeks I have encountered multiple incidents in which employees shared incidents or situations with their supervisors, managers and even executive leaders, and were asked whether they wanted to file a “formal complaint.” When, in some cases, the employee demurred, the leader did nothing to address the concern. In each of these instances, the conduct described was sufficiently severe that if it had happened, it would be a violation of organizational policy prohibiting harassment, discrimination or inappropriate conduct. Let’s unpack the idea of a “formal complaint.”
Under Title VII and most state laws governing discrimination or harassment, legal exposure for an employer begins when the employer “knew or should have known” that unlawful conduct was occurring. In most cases, liability begins when the employer, having that knowledge, fails to take action to stop the conduct. An employer “knows” about conduct when it is reported (by a target or third-party), when an agent of the organization saw it or heard it or when an agent of the organization actually did it. “Should have known is about reasonable supervision and oversight.” So, when an employee tells a supervisor, manager or executive that something has happened, the organization “knows.” Whether the employee wants you to take formal action becomes rather irrelevant. Whether the employee wants you to do nothing becomes irrelevant. The obligation to take action has been triggered. In fact, asking an employee if they want to make a “formal complaint” appears to place an actual obstacle in front of the employee — as though they are the ones who have to decide whether to potentially get someone in trouble.
A “formal complaint” under this fictional construct often involves a “written statement.” Personally, I detest employers requiring employees to prepare written statements about their complaints. From the incompatibility of the timing with the realities of human memory to limitations and variances in literacy, the utility of a written statement is quite dubious. Nevertheless, it is a favorite of leaders who believe that a written statement will force employees to “stick to their story” or “be accountable,” the idea being that once the statement is written the employees have to stand by their account (never mind that human memory will often result in details emerging over time.) I have been successful at persuading some leaders that the statements are gratuitous, and failed with others, but the one thing I will say with no doubt at all is that telling employees that you will not pursue their complaints without a written statement puts you directly in harms way. The standard is not “wrote or should have written!” It is known or should have known. The employee has told you. You know. You need to act based on what you know.
Of course, receiving complaints is a nuanced business and your ability to act is based upon the quality of the information you’ve been given, but it is always worth a reminder that with or without a “formal complaint” it is best to document employee concerns and take prompt, appropriate steps to examine and address those concerns.
