Published in the Portsmouth Herald
Harassment is one of the most frequent complaints brought by employees. Last month, the Equal Employment Opportunity Commission identified its priorities for 2013 in a new Strategic Enforcement Plan. Preventing harassment in the workplace was included in this list of priorities.
Not too long ago in Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009), the United States Supreme Court reminded employers that they are subject to a “strong inducement to ferret out and put a stop to any discriminatory activities” in the workplace. It explained that employers have been prompted “to adopt and strengthen procedures for investigating, preventing, and correcting discriminatory conduct.” Employers must exercise reasonable care to prevent and promptly correct any discrimination.
The internal investigation process is an important risk management tool for employers when faced with a harassment complaint. If internal investigations are done properly, they can aid employers in avoiding lawsuits and offer employers defenses and lessen damages if there is subsequent litigation. Alternatively, if employers do not investigate complaints or investigate complaints appropriately, they may face greater liability in subsequent lawsuits and agency proceedings.
As a starting point, employers should have anti-discrimination policies that prohibit all forms of harassment under federal and state law. The policies should be distributed to all employees. Employers should train employees and front-line managers and supervisors on its anti-discrimination and other workplace policies.
Once employers become aware of a concern about potentially discriminatory conduct, employers should conduct an internal investigation. Knowledge of conduct from any source—an employee, third party, or supervisor— triggers the investigation. One of the biggest mistakes employers can make is not to conduct an investigation because an employee does not make a “formal” complaint or because an employee wants to keep the complaint “confidential.” A complaint does not need to be in writing. Once an employer is aware of conduct that is potential discrimination, the employer has an obligation to investigate.
Investigations can be short or they can be time-consuming depending on the complexity of the situation or the seriousness of the issues. The decision to avoid doing an investigation or not following company procedures in conducting investigations can lead to liability for the employer. Employers may choose to consult with counsel to determine the appropriate investigative steps and whether there are any special concerns and requirements related to a given situation.
Investigations should be conducted by trained employees who have some authority within the company or by an outside investigator. Investigators should be objective, unbiased, and good communicators. This is a fact gathering process and not an interrogation.
Once the proper investigator is identified, the investigator should review any policies or information helpful to the investigation. Investigators should interview the complainant, the accused, and all other witnesses, whether identified by the complainant or the accused. Developing a preliminary list of questions for the interviews helps the investigator focus the discussion to gain information. All interview notes should contain the date and name of each person interviewed.
As part of the investigation, all individuals must be reminded to refrain from any potentially retaliatory conduct toward the complainant. Witness-employees who disclose harassing or discriminatory conduct when answering questions during an employer’s internal investigation are also protected from retaliation.
At the conclusion of the investigation, all the information should be considered and the company must decide what it believes happened and what, if anything, it needs to do about it. The company should inform the complainant of the outcome so that the complainant knows the company has taken the matter seriously. Employers should also follow-up with both parties over the next few weeks or months and reiterate the company does not tolerate and the law prohibits retaliatory conduct.
When completed, the employer should maintain the investigation file in a separate, confidential investigation file. None of the materials from the investigation should be maintained in anyone’s personnel file (either the complainant or the accused), except that any documentation of any discipline or corrective action taken with respect to the accused should be included in the personnel file.
Effective internal investigations play an important role in protecting companies from workplace liability. Companies should take complaints seriously, deal with them objectively and promptly, and take appropriate remedial measures, if necessary, following the investigation.
Jennifer L. Parent, a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A., can be reached at 628-1360 or [email protected]. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth as well as Woburn, Massachusetts.