Properly Investigating and Responding to Employee Complaints of Harassment or Discrimination
No employer wants to hear that an employee is alleging that he or she is the subject of harassment or discrimination. But, when it happens (and it likely will sometime), how an employer handles the situation can make the difference between resolving the matter and potential litigation. This article will provide a roadmap for employers.
Policies and Training
Anti-Harassment / Non-Discrimination Policies: As an initial step, all employers should have strong anti-harassment / non-discrimination policies within their employee handbook. This policy should contain clear procedure for reporting alleged harassment/discrimination. And, this policy should have strong anti-retaliation language. If you don’t have all of these elements in your employee handbook, revise it immediately. Finally, all employees should acknowledge (in writing) receipt of the handbook and anti-harassment / non-discrimination policy.
Training and Education: Secondly, on the commencement of employment (especially for all managers) and at least annually for everyone else, all employees should receive training/education on anti-harassment / non-discrimination policies of employer and how to recognize/prevent and report unlawful harassment/discrimination. As an employer, be sure that such education/training is fully documented.
Affirmative Defense: The importance of having policies in place and providing education/training cannot be overstated. First, with effective policies and education, hopefully harassment and discrimination will be curtailed or minimized. Second, with such education, training and policies, employees will hopefully seek to handle any complaints of harassment/discrimination internally instead of directly contacting a plaintiff’s attorney or the EEOC. And, finally, if an employee does not utilize a company’s internal reporting procedures, the employer could have affirmative defense defeating an employee’s claims (because employer was not provided opportunity to investigate or remedy situation).
2: Response to Allegation of Harassment or Discrimination
Formal Process: An employer should have a formalized process to investigate charges of harassment or discrimination. When possible, investigation should internally be conducted by trained HR personnel (under the supervision of an employment law attorney). If your company does not have HR manager, it should be designated supervisor/manager (without connection to alleged harassment/discrimination). Process should be written and set forth in Harassment Policy. If a female employ is complaining about sexual harassment, the company should consider having female employee conduct or assist with investigation.
Don’t Provide Evidence for Plaintiff’s Attorney: As a company conducts its investigation, it should assume that every step it takes, every email drafted, every note or memorandum, will eventually be provided to a potential plaintiff’s attorney in an employment lawsuit. Therefore, throughout the investigation, nothing should be written that provides a plaintiff’s attorney a smoking gun – the goal of the investigation should be remedial, not to draw conclusions that could ever be used against the company. Protecting documents from discovery is one reason many companies will have an attorney conduct the investigation. But, even if an attorney conducts the investigation, it might not shield all information. So, be careful during the investigation.
Interview with Alleged Victim: As an initial step, it is good practice for an employer to have a standardized form that any employee can utilize to complain of harassment or discrimination. This form should cover basic information: Dates and times of incident(s); place of incident(s); company employee(s) involved; any witnesses; description of incident(s); additional information/facts. The alleged victim should sign and date this form (or, if the company does not have appropriate form, the company should have this information taken as first step).
After obtaining this initial information, and after assuring the employee that the company will not take any retaliatory action in accordance with the company’s anti-retaliation policy, the company investigator should interview the alleged victim to obtain more detailed information from employee. As a general rule, the company should not promise to keep investigation confidential, since employer has obligation to investigate matter.
Interview with Alleged Harasser: After obtaining information from the alleged victim (and perhaps witnesses provided by victim), the company investigator must provide the alleged harasser the opportunity to learn of the claims and address them. Throughout the company’s investigation the company should remain neutral and clearly state that it has a legal obligation to investigate any allegations of unlawful behavior – but, that the company is not making any determination during investigation. The alleged harasser should be allowed to respond to the allegations made against him/her, state whether they are false (and, if false, why the alleged victim could have made up the allegations), and obtain any other relevant information.
Interview Witnesses: As part of the employer’s investigation, the employer should interview individuals identified by the alleged victim and/or harasser having relevant information. Further, the employer should consider interviewing colleagues that due to their working relationship with the alleged victim and/or harasser, may have seen the alleged harassment/discrimination.
Remedial Action: Once the company has conducted the investigation, the company (perhaps in consultation with employment law attorney), should make credibility determinations and decide what remedial action (or disciplinary action) should be taken. If the alleged victim was in fact subject to harassment or discrimination, the company should immediately take actions to stop and reverse such harassment or discrimination. The good faith efforts of the company to remedy any unlawful harassment or discrimination are its best option to avoid an EEOC Charge and/or lawsuit. Be sensitive to the victim and find a reasonable solution.
Action against the alleged harasser should only be taken following the investigation and upon collaboration of evidence. In this regard, the company must be very careful to avoid a potential defamation suit by the alleged harasser. A defamation lawsuit upon the termination of the alleged harasser is a very real threat for which the company must be careful.
Most employers, at some time, will face allegations of unlawful harassment or discrimination within their workplace. However, employers that are prepared with strong anti-harassment/discrimination policies, that have clear reporting procedures for employees, that have well trained managers and educated employees, and that conduct careful investigations and take appropriate remedial actions, should be able to avoid employment charges or litigation.