(Published in New Hampshire Business Review, April 2010)
During lunch one day, Emily tells her coworker, Jessica, that she believes she is being sexually harassed by a male supervisor in her group. Emily asks Jessica not to say anything. Feeling uncomfortable knowing this information, Jessica tells Sue in Human Resources a week later. Sue then asks Emily her about her comments. Emily tells Sue that she does not want to make a “formal” complaint and asks Sue not to do anything because she wants to keep it confidential. Sue questions whether the company is required to investigate the circumstances raised by Emily with her supervisor when Emily wants to keep it confidential and does not want to make a formal complaint.
The internal investigation process has become an increasingly important risk management tool for employers. Courts and governmental agencies expect employers to conduct investigations when complaints of discrimination, accounting irregularities, or other misconduct arise in the workplace. 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. If employers do not investigate complaints appropriately, however, employers may face greater liability in subsequent lawsuits and agency proceedings.
In 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. In Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S.Ct. 846 (2009), the Supreme Court 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.
Once employers become aware of a concern about potentially discriminatory conduct, such as harassment, employers should conduct an internal investigation. Knowledge of conduct from any source triggers the investigation. An employer may learn of conduct from the complainant, another employee, a third party, or a supervisor who has observed unlawful behavior. Front line managers and supervisors should be trained to report any complaints of or directly observed unlawful behavior
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.” There is no such thing as an “informal” complaint. A complaint does not need to be in writing to require action by the employer. Employees need to understand that once an employer is aware of conduct that is potential discrimination, or otherwise in violation of an employer’s policy or a law, the employer has an obligation to investigate. Employers cannot promise complete confidentiality, and cannot agree to do nothing in order to keep it confidential.
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.
In order to conduct an effective and fair investigation, certain information will more than likely need to be shared with the subject of the complaint, potential witnesses, or managers involved in whatever response the employer must take. All parties must be reminded that it is their obligation to cooperate with the investigation, to keep the allegations confidential, and to refrain from any potentially retaliatory conduct.
At the conclusion of the investigation, all the evidence should be considered and the company must decide what it believes happened as well as 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 all persons should be reminded that 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.
In the above situation, because Sue is on notice of Emily’s allegations of potential harassment or discrimination, the company should conduct an investigation. Sue may consult with counsel regarding an appropriate investigator or any interim measures that may be taken under these circumstances. The company should take this allegation seriously, deal with it 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].