Nothing catches people’s attention like a high-profile, drama-filled lawsuit. Not every employer will deal with a Blake Lively/Justin Baldoni-level feud, but discrimination and harassment lawsuits arise in all types of work environments. No matter how well employees seem to get along, employers must evaluate and strengthen their anti-discrimination and anti-harassment policies, complaint procedures, and training.
One important task for employers is to develop a plan for investigating complaints. An effective investigation has three important characteristics:
- It must be conducted promptly after the employer learns of the allegations
- It must be thorough, impartial, and confidential
- It must protect the reporting employee and any witnesses from retaliation.
An investigation involves many moving parts, so preparation and planning in the following areas is key.
Train your supervisory employees to properly receive and handle employee complaints.
Supervisors are often the first (and perhaps only) people to receive employee complaints about incidents of possible discrimination and harassment. Thus, it is critical that supervisors understand their obligations as representatives of the company to receive and escalate complaints to Human Resources.
- When a supervisor receives a report from an employee of possible discrimination or harassment, they should not assume the complaint is trivial. A report of concerning behavior needs to be escalated so it can be investigated and addressed as needed.
- Train supervisors to identify issues of discrimination or harassment so they recognize when they are receiving a report that needs to be escalated.
- Supervisors must understand that just because an employee does not use the words “discrimination” or “harassment” does not mean the supervisor should not bring the report to Human Resources. Supervisors should not delay in escalating the report to Human Resources. A supervisor’s delay becomes the business’s delay. An unreasonable delay in investigating may be perceived as discrimination and may hurt a business’s defense against a lawsuit.
- Supervisors must understand that retaliation is prohibited so they do not engage in it and know how to identify it.
Decide who will conduct investigations of employee complaints.
Deciding who will conduct the investigation is critically important. An effective investigation should be conducted by someone who is objective, knows how to interview witnesses and document evidence, and understands the legal ramifications of the allegations and facts.
The goal of the workplace investigation is to determine what happened and what, if any, corrective action would remedy any problems and prevent recurrences. Should the reporting employee pursue a lawsuit, the investigation likely will be a key component to the business's defense and may help shield the business from liability.
Businesses have options when choosing an investigator: the business's human resources manager; an outside consultant; or an employment law attorney. An experienced human resources manager will be familiar with employment laws and may have experience or training in conducting investigations. The human resources manager knows the players in any workplace drama. That knowledge can be an advantage in understanding the facts. However, it also can be a disadvantage if the human resources manager appears biased based on their own workplace relationships or the business's reporting structure.
If the human resources manager’s familiarity with the workplace creates a perceived or actual conflict, the business should engage an outside party to conduct the investigation, such as a consultant or employment law attorney. An employment law attorney knows the employment laws and understands the applicable burdens of proof. Attorneys are trained in interviewing witnesses and collecting evidence. Attorneys can use their litigation experience to determine witness credibility and to gauge how a jury may feel about any evidence. In some circumstances, the attorney's conclusions and recommendations may be protected from disclosure by the attorney-client privilege or attorney-work product doctrine.
Before engaging an external attorney as investigator the attorney and business should evaluate the implications of the attorney's role as investigator, such as whether that role would stop the attorney from representing the business in any related litigation.
Be consistent in how you conduct investigations into employee complaints.
Businesses should investigate all complaints, even those that seem trivial. While not every investigation will require the same amount of effort, all reports should be looked into promptly. A lack of consistency in when and how a business conducts its investigations can be perceived as discrimination.
Investigations, regardless of their scope, should be conducted to the same standards. Consistency ensures decisions are based on clear, standardized processes, reducing the risk of bias. Consistent investigations also promote a healthy work environment by demonstrating the business’s commitment to addressing concerns promptly and appropriately, which can prevent workplace issues from escalating.
In short, thoughtful planning is necessary for effective investigations of discrimination and harassment complaints.
