Balancing Humanity and Liability in the Workplace

A friend, who is a supervisor in a company, shared with me that she was “afraid to care” when it came to the employees she encounters on a daily basis.  She felt that knowing any personal information about her subordinates – whether it be how and ill family member was doing or what he or she did the past weekend – would only lead to knowledge that could invite or support a future claim against the company.  This struggle between wanting to develop professional, interpersonal relationships with subordinates and the fear of providing ammunition for a future discrimination claim is not an uncommon one amongst supervisors.  It struck me as a sad commentary on what the exponential growth of lawsuits in the employment sector has done to the important interpersonal and professional relationships in the workplace.

Certainly, laws should be in place to prevent discrimination based on any number of protectable characteristics.  Employment decisions should never be based on gender, color, or disability, but rather should be based on merit alone.  But is this really what we had in mind: making otherwise good, well-meaning people afraid to care about their fellow human beings?  Employers and supervisors have become so wary of the possibility of being sued in the future that they are often paralyzed in the present when it comes to developing the important interpersonal relationships that make a workplace thrive, grow, and be productive.

But what can a supervisor, or an employer for that matter, do to clear the path for the development of interpersonal relationships in the workplace without exposing themselves to unnecessary and unwanted liability?

As to employers, first and foremost, having good policies, procedures, and reporting mechanisms in place is likely the single best step to avoiding most kinds of liability.  However, this means more than just having a lengthy and detailed employee handbook and handing the employee a copy at orientation.  A 100-page employee handbook does little good if it is confusing, contradicts itself, and no employee actually reads it.  Make sure the employees not only receive and have constant access to the policies, but also that they understand them.  Also, ensure that employees have numerous avenues to report any concerns and that such information is posted throughout the workplace.

In addition to training supervisors as to the content of these policies and procedures, train supervisors to be self-aware of their behavior towards employees.  Training supervisors to be self-aware of how they treat each individual employee, and why they treat them in the fashion they do, can empower supervisors to develop those powerful and important interpersonal relationships with all employees without being paralyzed by fear of future litigation.

As to supervisors, first, remember that knowing information about a subordinate, no matter how sensitive, can never lead to liability in and of itself.  It is an employer’s actions after learning of the information that leads to liability.  This is not to say that a supervisor should seek out sensitive information about a subordinate, but one should also not live in fear of discovering such information during the course of a professional relationship with a subordinate.  Ensure that if any such sensitive information is learned that you treat the information as confidential and continue to treat the employee in the same fashion you did previously.

Next, follow the policies and procedures the employer has in place consistently and treat every employee the same.  While there is absolutely nothing wrong with developing interpersonal relationships with subordinates, such relationships should not cloud your judgment in carrying out the policies and procedures consistently.  No exceptions to policies should be made just because you have good interpersonal relationships with the employees.  In that same vein, document how you treat every employee consistently and the same.  The single most important way a supervisor can demonstrate that he or she is not playing favorites is to be able to demonstrate through documentation that every employee was treated the same.

There is no question that a workplace filled with positive and professional interpersonal relationships will lead to a more productive and satisfied workforce.  Striking the balance of fostering those positive and professional relationships with appropriate workplace discourse and avoiding future liability can be a difficult one.  However, that does not mean supervisors should be discouraged from developing those relationships or that supervisors should live in fear of caring about their subordinates.  Rather, employers can empower the supervisors by having appropriate policies in place and training supervisors regarding the same.  In addition, supervisors can feel free to develop those relationships so long as they remain self-aware of how they are treating each employee, consistently follow the policies in place, and document the equal and consistent treatment of all employees.

If you have any questions about this article, please contact an attorney at Mallery & Zimmerman.