Take complaints seriously, follow protocol for internal investigations
As a manager, how would you react to the following scenario?
Duane, an employee in another department, confides in you that his female supervisor Kathleen keeps referring to him as “hot.” She tells off-color jokes, and presses him for details on what he does after work. Duane admits feeling uncomfortable around Kathleen, but insists that neither you nor any other manager mention it to Kathleen because the situation is embarrassing. He tells you he’s “just venting” and says he’s confident he can work this out on his own.
a. Coach Duane on how to handle the situation?
b. Have an off-the-record-conversation with Kathleen, telling her to stop the jokes and inappropriate comments around Duane?
c. Notify your HR Manager immediately?
The correct answer is c.
Employment law states that employees have a right to work in a harassment-free environment, and that employers are largely responsible for maintaining a harassment-free and discrimination-free workplace. There are more than a dozen classes of employees protected under Federal and/or state law, including race, sex, age, religion, disability and sexual orientation.
In the scenario above, Duane may be “just venting” but consider his complaint in light of a recent New York State jury verdict. In February 2009, a jury in Queens awarded a nurse at Flushing Hospital $15 million for a sexual harassment allegation against a doctor. The jury found that the hospital was aware of the doctor’s inappropriate behavior toward female employees, but overlooked it despite complaints. The verdict attributed fault for the sexual harassment evenly between the hospital and the doctor.
Verdicts of this nature are becoming increasingly common. In 2009, the Equal Employment Opportunity Commission (EEOC) recovered $376 million for employees who filed harassment complaints. The EEOC attributed this “near-historic” sum to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity in the workforce, increased awareness of workplace rights, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.
So what is an employer’s first line of defense against a harassment or discrimination lawsuit? Employers can begin by protecting employees with a zero tolerance rule that is backed up with formal policies and complaint procedures. Employers also must be willing to conduct prompt, impartial and well-documented investigations when necessary and be prepared to take appropriate, corrective action when required.
Conducting an Investigation
There are many misconceptions about internal investigations. Here are five common missteps employers often make when responding to employee complaints:
Error #1: A complaint must be in writing to trigger an investigation.
According to David Kresock, a partner with Harter Secrest & Emery LLP, when an employee complains about alleged harassment or discrimination, an investigation must be conducted regardless of whether the company’s procedure for lodging complaints was followed. An employee is not required to put a complaint in writing, and need not even use the words “discrimination” or “harassment” in order to trigger an investigation.
Error #2: Employee has a “right” to decline an investigation.
The obligation to investigate arises when an employee complains about facts or circumstances that would cause a reasonable person to conclude that the complaint was based on discriminatory conduct, said Kresock. It is sufficient that the employee complains to any supervisor or member of management. Once a supervisor or member of management is aware of the allegations, the company must conduct an investigation of some kind – even if the employee asks the supervisor or manager to do nothing about the complaint.
Error #3: No need to make this “official,” time will tell if a complaint is legitimate.
It is important to move quickly if you hear or suspect someone has been harassed or is working in a hostile work environment, said Kresock. Prior to conducting an internal investigation, meet with your company’s employment law attorney. If an investigation is necessary, it should be handled by an HR professional or a manager trained in conducting internal investigations. It’s also a good idea to have a second, impartial manager serve as a witness during interviews. Both the interviewer and witness should take detailed notes of each conversation.
Error #4: A few informal “off-the-record” conversations with co-workers might be more effective than an investigation.
Undocumented conversations will provide little support if legal action is taken. The purpose of an investigation is to gather facts and identify issues. Prior to beginning the investigation, scripted questions should be prepared to guide conversations and to ensure all relevant issues are addressed. During the initial interview, the complainant should be asked if he/she feels confident that an impartial resolution can be reached, and what his or her expectations are for the outcome of the situation.
Error #5: Only workers who witnessed the event are relevant to an internal investigation.
According to Kresock, the interviewer should conduct interviews with both direct witnesses and background witnesses. Background witnesses might be supervisors or other co-workers who did not witness the event but might have information that could help explain what occurred.
A final report that presents the factual findings of the internal investigation and includes any conflicting or inconsistent information should be reviewed by the company’s employment attorney, HR manager and other appropriate senior managers. This group then determines the next steps which may include corrective action.
Once a decision has been reached, the investigator or appropriate manager should meet with the accused to explain the results of the investigation. The manager should affirm that retaliation is prohibited, and clearly state options if the outcome of the investigation is disputed.
Management also should meet with the complainant to confirm agreement with outcome, in writing if possible. Managers should provide guidance on what complainant should do if he/she experiences retaliation and review confidentiality obligations.
Both the complainant and accused also must be notified in writing of the investigation results.
Safeguarding against litigation
An employee handbook clearly outlining the organization’s policies against discrimination, harassment and workplace violence is one of the most important steps responsible employers can take to protect employees and reduce the risk of legal action stemming from harassment or discrimination.
Training supervisors on harassment prevention is another important step as they serve as your company’s first line of defense. It also is advisable that every employee receive annual training on avoiding sexual harassment and discrimination in the workplace. The training should review your company’s policies regarding complaint procedures and clarify the consequences of violating these policies. Employees also should be assured that they will not face retaliation for filing a complaint, regardless of the outcome.
Sexual harassment and discrimination claims constitute a significant liability risk for employers. Though legal action can strike even the most diligent employers, companies can protect themselves by understanding the law, clearly spelling out their policies on workplace harassment and discrimination, training employees and supervisors in EEO principles, and following proper protocol for investigations.