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HARASSMENT ISSUES IN UNEMPLOYMENT CLAIMS

 

Employees Who Quit Due to Alleged Harassment

Employees Who Are Fired for Allegedly Committing Harassment

 

Harassment issues are common in unemployment claims. They manifest themselves in two main ways. First, employees who quit because of alleged harassment will have to show that the harassment gave them good cause connected with the work to quit when they did if they want to avoid disqualification. Second, employees who are fired for allegedly harassing other employees can be disqualified if their employers prove that the harassment occurred and show how the employees knew or should have known they could be fired for such a reason. For various reasons, employers have trouble defending against these kinds of claims.

 

Employees Who Quit Due to Alleged Harassment

 

There are many kinds of harassment: racial, sexual, religious, ethnic, age-based, disability-based, and general harassment or bullying. Any smart employer will do its best to prevent harassment of any kind from occurring, not only because it can cause good employees to quit and the others to develop morale problems, but also because harassment often makes employers liable under federal and state laws. Here is a list of the best things to do, starting with the very best:

 

1. Prevention. Preventing harassment in the first place is by far the ideal solution. Maintain a work atmosphere in which employees feel accepted and supported and in which everyone knows that harassment of any kind will not be tolerated. Have all employees attend education programs to train them on the many forms harassment can take and how the company will help them respond to any such problems.

 

2. Investigation and Action. Let employees know how to report harassment and that it is not only their right, but their duty, to report harassment to responsible management whenever it happens to them or they witness it occurring. Investigate promptly. Take effective remedial action to prevent reoccurrences or retaliation. Document all the steps your company takes, and let the complaining employee know how important it is to you that they feel comfortable at work.

 

3. Defend against Claims. If you have taken the above steps, you should not have to worry very much about UI claims. Assuming you have taken the employee's complaint seriously, and have taken prompt, effective remedial action to prevent reoccurrences and retaliation, if the employee nonetheless quits, he or she will have a harder time proving that they had good cause connected with the work to quit. Use your documentation to show that you did the best you could to ensure that the complaint was dealt with effectively and that the employee was fairly treated.

 

If the employee quits without taking advantage of their rights under your harassment policy, you should argue that a reasonable employee would not have quit without affording the employer a chance to address their problems. If the employee quits without any notice whatsoever about the alleged problems, point that out and argue that your company had no opportunity at all to try to correct whatever problems allegedly existed.

 

In any voluntary leaving case involving alleged harassment, an essential witness will be whoever the alleged harasser is, unless you plan on conceding the fact that the harassment occurred. Other essential witnesses will be any employees who actually saw what went on between the employee who complained and the alleged harasser.

 

Employees Who Are Fired for Allegedly Committing Harassment

 

An employee should not be fired for alleged harassment until and unless a complete and thorough investigation is done that shows it more likely than not that the employee indeed violated your harassment policy. In harassment cases involving claimants who have been discharged, the following evidence is crucial:

 

1. Copy of your harassment policy

2. Proof that the claimant knew about the policy

3. Documentation of the investigation you did

4. Documentation of any prior counselings or warnings given to the claimant

5. Firsthand testimony from eyewitnesses to the harassment

 

The last category is where most employers lose their harassment cases. Many employers show up at the appeal hearings with only secondhand testimony from a human resources employee who is looking at file documents. Other employers present written statements from the employees who complained about harassment, but do not present those witnesses in person. Such employers always lose their appeals, ALWAYS, (as in every time), if the claimant is giving an otherwise credible denial of having committed any harassment. Here's point number 5 again: to win a harassment case, you must present firsthand testimony from eyewitnesses to the harassment. "Eyewitnesses" means exactly that: people who actually saw the harassment occur. In some cases, the only eyewitnesses will be the victims of the alleged harassment. Sometimes, other coworkers will have witnessed the harassment. Do not make the mistake, as some employers have, of thinking that the law requires you to keep the victims' identities confidential, even in the context of an administrative claim or lawsuit. There is no law requiring confidentiality in such a context. Sometimes, employers do not present the victims as witnesses out of a desire to protect their feelings or safeguard them from retaliation by the claimant. Only you, the employer, can judge how important it is to protect the victims and/or prevail in an unemployment claim. Just remember: there is no form of evidence in a case like this that has greater weight than firsthand testimony subject to cross-examination. It may help to keep in mind that all appeal hearings are held by telephone (unless a party is hearing-impaired), and so the victims at least do not have to be in the same room as the claimant. Also, remember that criminal laws protect people from harassment, stalking, and assault - do not hesitate to consult the police if the danger of retaliation ever appears to become real.

 

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