How to Effectively Respond and Investigate a Harassment or Claim of Discrimination

The outline below was presented to Washington Executives Association on May 1, 2019.

We thought it might be useful for employers, owners and managers to know what is involved in responding to workplace harassment or discrimination claims.  

If you need more guidance or information, Contact the employment law experts at General Counsel Law, PC.

1. Be Prepared and Foster Workplace Environment

• Employers MUST have effective HR policies and procedures (all documented) that are objectively followed so all employees know the rules, regulations and what to expect.  This is vital.
• Provide regular training to all employees and supervisors.
• Have effective complaint mechanism
  • Mechanism for employees to come forward with complaints without fear of retaliation
  • Mechanism to process and investigate
  • Train investigators (or have legal counsel identified to assist)

2. When/If you Receive Complaint

• Consider severity – who is involved, is formal investigation by legal counsel appropriate – or can it be handled internally
• Consider whether any immediate actions should be taken (for example, should accused by placed on administrative leave or reassigned pending investigation).  Be cognizant of the rights of both complainant and accused.
• Determine who will conduct investigation –
  • Person may need to testify in court
  • May want outside legal counsel to conduct or oversee so investigation notes, etc. protected under attorney work product (and, as such, protected from discovery in any future litigation)
• Work to preserve evidence – put “litigation hold” on emails, texts, messaging services, voicemail, etc.  Depending on severity of complaint, pull in IT to assist. May need to gain access to personal emails, texts, etc.

3. Conducting the Investigation

• Conduct promptly – don’t wait or hope issue goes away
• Investigator (and company) must make clear to all parties that he/she is unbiased and only looking for facts – working to ensure company (and its employees) complies with law
• Maintain confidentiality throughout the process.  
• Strongly remind everyone involved that the company will not retaliate, in any manner, against anyone involved.  
• Have investigators take and record contemporaneous notes.  Take quotes. Get admissions. Consider having witnesses sign statement.  Remember, unless investigation conducted by an attorney or at the direction / oversight of attorney, all notes could be subject to discovery.

4. Consider whether written report is appropriate for investigation – really depends on circumstances.

5. Determine what, if any, action should be taken.

• Corrective action may include, discipline (including termination), coaching, or training.
• If accused not terminated, be sure to work through process with complainant – don’t want him/her believing company took accused side and have them go to plaintiff’s attorney.
• Again, make sure no retaliation against any party involved – but, in particular, the complainant.  If complaint was against supervisor, need to be vigilant that complainant is not subjected to any actual or perceived retaliation.  More retaliation EEOC charges than almost any other.

6. Post Investigation

• Inform appropriate employees that investigation closed and that company has taken action
• Remind employees of complaint procedures and company commitment to harassment / discrimination free workplace (and that no retaliation is tolerated)
• Use opportunity to review HR policies and procedures, strengthen as needed, and conduct employee and supervisor training.

Final Thoughts

The Best Offense is Great Defense – this goes back to #1 – to protect your company, be prepared.  

Have good HR documents in place, available for employees, and objectively applied.  Have open communication. If employees feel that they are valued and treated fairly and objectively, the likelihood of harassment / discrimination complaint is not only diminished, but when there is one, it is often much easier to remedy without eventual litigation.

If you find that you’re in need of more guidance or information, please Contact the employment law attorneys at General Counsel Law, PC.