The High Cost of Bad Behavior – And How Effective Workplace Practices Can Help
Jane Mounsey has been a LWHRA member since 1992 and was LWHRA President in 2010. She is the Founder + Principal of Constructive HR Strategies, an HR consulting practice specializing in Employee Relations and Workplace Investigations. https://www.constructivehrstrategies.com/
FYI -- I am not an attorney. The ideas and information presented here should not be considered legal advice. I am sharing an increasing cause for concern in our profession. Always consult with your legal team about these issues.
The cost of people behaving badly in the workplace has always been high and continues to escalate year over year. There are of course the hard dollar costs to consider, but also the less quantifiable costs of impact on productivity, morale, retention and engagement.
Let’s look at some recent data on the rising number of cases and awards. Statistics found in the EEOC’s 2023 Annual Report are sobering. Discrimination charges increased 10.3% and lawsuits skyrocketed by 50% compared to 2022. And, as shocking as it may seem, EEOC plaintiffs prevailed in court 91% of the time.
What’s even more frightening is the cost to employers: Over $440mm in settlements was awarded in 2022. The average settlement was approximately $30,000 (based on 15,143 claimants). Legal fees for employers in these cases averaged $75,000. Legal fees associated with an actual court case averaged $125,000 (Novian & Novian, LLP, March 5, 2024).
Many organizations have Employment Practices Liability Insurance to help mitigate these hard dollar costs, but deductibles are also high, and the impact on the bottom line can still be devastating for small to medium sized businesses. And no one wants to endure the heartburn of defending an EEOC charge!
Think about the last time your firm investigated an employee conduct complaint. How many hours of your leadership team’s time did it take, not to mention the time spent in meetings and interviews with the employees involved, and the time it took to gather evidence and evaluate everything you’ve discovered? Those hours are hard dollar costs as well. Then there are often hard decisions to be made, which can result in more hard dollar costs associated with finding, hiring and training a replacement, if it comes to that… not to mention all the disruption and distraction, regardless of the outcome.
But there is hope! There are ways to mitigate these costs proactively, and the foundational piece is your conduct policies. I realize that workplace policies are HR 101, but If you do not have clear, compliant policies that unequivocally state expectations for behavior in your workplace, then your ability to hold people accountable is spurious at best. The part I often find missing is how a firm’s conduct policies reflect its purpose and values. Sure, policies need to reflect the law accurately, but including the truths you hold to be self-evident will make them come alive in your unique way.
Here's an example of what I mean from a policy I wrote many years ago, slightly modified for use here:
Our company’s purpose is to develop great leaders and learners at every level, to provide a high quality experience for all, to promote a positive work environment, and to be a vibrant, economically sustainable organization. We believe in integrity, embracing challenges, and having each other’s back. Please see our Vision, Purpose and Values statement to learn more.
Examples of some behaviors that demonstrate a commitment to our purpose and values include:
Demonstrating an unqualified commitment to our clients and each other
Being focused on continuous individual and organizational improvement
Having integrity, transparency and fairness in all dealings
Saying and doing something immediately in unsafe circumstances
Examples of some behaviors that do not support our purpose and values include:
Harassment of or discrimination against coworkers and any others associated with our business
And from there the more common compliance related admonishments carry on.
Communication is key. If your policies are simply distributed but not actually talked about in person, I believe you may be missing the boat. In my experience, very few people read the employee handbook. What to do? Well, I also believe in what I call “operationalizing” HR. An example of that is taking advantage of every opportunity to talk about your expectations. Whether it’s in all-hands, departmental or one on one meetings with your employees, leverage your respected leaders to provide specific examples of behaviors that support your mission and values. One company I know has all new hires participate in an onboarding session with the EVP of Operations to talk through the firm’s VPV, with a full explanation of how their values play out in terms of the way people show up and do their job on a day-to-day basis. Another great way to do this is through storytelling. Create a narrative around how someone got ‘caught’ doing something good, say treating a vendor with great kindness and respect, and how that in turn caused someone else to treat a candidate with respect. Which caused that candidate to say what a great place you are to work, even though they didn’t get the job! You get the idea.
Culture is king and is as much about what you do as what you say. No, let me take that back. Culture is 100% about what you do. Walk the talk and reward those who do the same, and counsel those who do not. Ask yourself ‘what behaviors do I demonstrate that reflect our values’? When your leaders demonstrate a high regard for those around them it becomes infectious, and when they actually elevate those around them, with say, acknowledgement, appreciation and opportunity? That is gold. These small examples may seem obvious to you, but are they really happening on a daily basis at your firm? In my experience, it takes conscious practice to bring joy into the workplace every day.
What to do when things still go wrong: Let’s face it, awkward situations are unavoidable when groups of humans work together, no matter how well you nurture your culture. But when those awkward situations escalate into allegations of misconduct you must act swiftly and decisively. Even if the complaint comes to you second or third hand, take it seriously. Here is one way of mapping out your response:
Is everyone safe? Immediately identify any actual threats and take action to prevent harm. Obvious examples are specific threats of bodily injury but could also include psychological safety. Is the person making the complaint (the ‘complainant’) safe working around the person(s) they are complaining about (‘the respondent’)? Actions can include everything from calling 911 to separating the complaint from the respondent. But be careful there! If the action taken adversely impacts the complainant, you now have a whole new set of problems!
Never promise complete confidentiality but do assure discretion. The number one reason your employees do not elevate their concerns is fear of retaliation. They believe that if they make a complaint, they will be the ones losing their job. I don’t think this still happens very often in this day and age, but in my experience there is still a very real fear in the workplace.
Make a plan to investigate the allegations in a way that is effective and compliant, but that also minimizes distractions and general disruption of the work. Alert the key leaders who will be involved: HR, Counsel, Ownership and impacted Managers. Make sure all are clear on your SOP for conducting investigations before proceeding, and make sure the plan is compliant with employment laws in your jurisdiction.
Execute the plan efficiently and effectively. Make objective decisions based on facts. Identify and avoid biases that may influence perceptions and findings.
Make a decision based on your factual findings. The types of decisions you make will vary widely based on what you learn. Be alert for and think through any unintended consequences of those decisions.
Communicate the outcome to all involved. Obviously, the complainant and the respondent need to be informed, but follow up with peripheral players as well, including witnesses and team management. Include the appropriate admonishments to keep the information on a strictly need to know basis in all of your communications.
Keep your finger on the pulse of the team(s) involved going forward. Continue to positively reinforce behavior that aligns with your mission and values. What you do after an investigation is as important, if not more so, than how you conduct the investigation itself.
To learn more about workplace investigation best practices, I recommend visiting the Association of Workplace Investigators here: https://www.awi.org/