Managing a workforce can present a number of challenges. While it is often difficult to forecast employee issues, it is important to have a plan of action in place to ensure prompt and effective handling of complaints about potential harassment, discrimination, or retaliation. All employers have policies (whether written or not) against unlawful conduct. But having an “equal employment opportunity” mantra or a “zero tolerance” policy is only as good as the protocol used when such a policy is implicated.
When called upon, employers must investigate conduct and take appropriate corrective action to maintain a heathy work environment—and avoid unnecessary exposure to litigation. By adhering to a structured protocol when responding to employee complaints, an employer can be sure to meet its legal obligations while also promoting proper workplace behavior. For employers who have yet to implement a formal policy, the following steps provide a helpful framework. For those with a policy, the following may serve as guidelines to improve your procedures.
1. Preventative Measures and Training
One of the best ways to prevent improper workplace behavior is to hold regularly-scheduled training for all employees. These training sessions need not be lengthy, but they should address and reinforce the employer’s antidiscrimination and anti-harassment policies. Training is also an opportunity for the employer to promote the employer’s values and highlight expectations for professionalism and mutual respect in the workplace.
Training sessions should be held at least annually and attendance of all employees should be required. Where feasible, all new employees should receive training upon hire. Employers may develop a separate enhanced program for supervisorial or managerial employees to focus on recognizing and addressing discrimination and harassment. Managers and supervisors must also be reminded they will be disciplined for failing to report instances of discrimination or harassment, and that retaliatory actions for a complaint are not permitted.
Helpful Tip: When conducting training sessions, employers should ensure that an experienced HR professional, employment counsel, or another neutral party conducts the training. At the conclusion of such training sessions, employees should sign a confirmation of attendance to document they attended the training and understood the material presented. Employers should consider video recording the training so new employees can view as part of orientation.
2. Establishing Policies and Protocols
An employer should have and distribute written policies that address unwanted or illegal behavior in the workplace. These policies must be clearly set out in the employer’s handbook. If the employer’s handbook is modified or amended, employees should be given prompt notice of the changes. Employees should be required to review and sign the employee handbook at hire or when amendments are made.
An effective written policy should include the following:
(1) a definition of harassment, discrimination, and retaliation;
(2) a zero-tolerance prohibition statement, which states the employer does not tolerate such behavior;
(3) language defining the scope of the policy’s application and protections beyond the workplace; for example, “anywhere employees act on behalf of the employer” or “at an employer-sponsored event;”
(4) a description of the complaint procedure, including to whom and how the employee is to report;
(5) a description of disciplinary measures; and
(6) a prohibition against retaliation for engaging in protected activity.
Employer’s policies should generally encourage employees to report harassing or discriminatory conduct through the appropriate channels. The policies should also make clear that employees can report concerning behavior without fear of retaliatory action.
Specific disciplinary actions for those who engage in harassing or discriminatory behavior are important. Employees must know the consequences of engaging in such behavior, and employers must strictly adhere to their written policies. “Letting one slide” or not enforcing the same policy for every employee perpetuates favoritism and opens the door to further complaints. Thus, the employer’s disciplinary steps must be uniformly enforced.
Helpful Tip: It is good practice to highlight antidiscrimination and anti-harassment policies and practices in separate pages in the employee’s handbook. To further guarantee that each employee has read, understood, and agreed to the policies, an employer may wish to have each policy signed by a new employee upon hire.
3. Receiving a Report and Interviewing Complainant
An employee’s report of unlawful conduct, whether written or verbal, should be acknowledged upon receipt. All complaints must be taken seriously, regardless of how trivial or minor an issue may seem at the time. Again, it is important to follow the protocol outlined in the employment policies, regardless of the perceived merit or truthfulness to the allegations.
After the complaint is acknowledged, an individual should be selected take the lead in investigating the complainant’s allegations. Ideally, the investigator of the complaint should be a neutral party, such as an HR professional. An outside consulting firm or employment counsel may also be retained, depending on the severity of the allegations.
Once an investigator is selected, the complainant should be interviewed. It is important to remind the complainant that his or her concerns are being taken seriously. Additionally, the investigator should reassure the complainant that no disciplinary or retaliatory actions will result from the complaint, so it is important to be truthful and honest about his or her allegations.
Helpful Tip: Confidentiality is important component when investigating a complaint. Allegations of discrimination, harassment, or retaliation often involve sensitive, personal, and emotional incidents. The complainant (and other interviewed employees for that matter) should be reassured that statements will remain confidential and protected from unnecessary disclosures to the extent possible. However, employees should be reminded that in order to adequately investigate the allegations, some information may be revealed on a need-to-know basis.
4. Engage in Reasonable Investigation
After interviewing the complainant, the extent of the investigation will vary depending on the severity of the complaint, the number of individuals involved, and whether the facts are in dispute. Speak to the alleged wrongdoer to hear his/her version of the events. Assure the accused that the employer is taking steps to fully investigate the complaint before any disciplinary actions are taken.
It is important to ask both the complainant and the alleged wrongdoer about other witnesses to the behavior at issue. Conduct separate interviews with each witness. Separating the witnesses will allow for a more honest and uninfluenced version of the events. Be sure to keep the parties’ confidences and only reveal information as needed. Document and detail each interview—when it occurred, who was present, and generally what was said.
Finally, gather documents and other relevant tangible evidence. Review emails, phone records, video recordings, or other documentation of the alleged behavior. If necessary, consult with information technologies personnel to retrieve any communications or recordings of the alleged incident. Preserve the documents and evidence throughout the duration of the investigation.
Helpful Tip: When interviewing the complainant and other employees, it is often a good idea to have more than one neutral party present. Both interviewers should document the interviewee’s statements and allegations, or at least both should sign off on the interview notes.
5. Take Prompt, Reasonable Remedial Action
After looking into the allegations, make a determination as to whether unlawful harassment, discrimination, or retaliation has occurred. If it has (and often even if it has not), an employer should take action to address the issue. Remedial action should be reasonably tailored to address the problem and prevent it from reoccurring. Disciplinary policies (including progressive and zero-tolerance) should be heeded. As mentioned above, making exceptions to these policies is imprudent: at best it suggests favoritism—at worst, it may be construed as unlawful discrimination.
An employer should discuss the remediation plan with the complainant and the accused to ensure that everyone is on the same page. The employer may ask the complainant what he or she would like to see done. An employer need not heed the whims of every complainant, but as a practical matter it makes sense for an employer to do what it can (within reason) to assuage the accuser and mitigate the situation moving forward. Sometimes a simple apology may resolve the situation.
Helpful Tip: A common misconception of employers is to not take any action unless a violation of work policy has been identified. It is true that no disciplinary actions should be taken against an accused if no violations are found. But even where no unlawful conduct occurred, it is usually wise to take steps to prevent a potential escalation of the issue—whether it be a physical separation of workspaces, a face-to-face meeting, or even a simple reminder of about employment expectations and proper decorum.
6. Follow up and Adjust Remedial Measures as Necessary.
Keeping the peace is essential to an efficient workforce and a healthy workplace. In a fast-paced and frenetic work environment, employers are not accustomed to revisiting issues that have previously been investigated and (seemingly) addressed. It is rarely a bad idea to review remedial measures and fine tune them as necessary to prevent a complaint from resurfacing.
Helpful Tip: A review and discussion of remedial measures will serve at least two purposes: to reassure complainants and to remind (would-be) offenders.
7. Document, Document, Document!
Documenting complaints received, facts gathered, and remedial measures taken is important. This is particularly true because an employer’s liability may hinge on the extent and reasonableness of its investigation and remedial measures. Documents make it much easier to prove during future litigation that reasonable steps were taken. Notes should be taken contemporaneously with, or shortly after, the information comes to light, whether by way of interview or other channels.
Employers often make the mistake of speaking with an employee without confirming the conversation in writing. An employer need not spend an inordinate amount of time drafting reports and memoranda, but even quick notes highlighting the important facts and details can be helpful. Without documentation to help establish what was said or done, a “he said, she said” situation may arise down the road—which is never an enviable position.
There are harsh consequences for failing to preserve evidence relating to potential or expected litigation. Thus, it is advisable to maintain all documents where litigation is reasonably anticipated, and even where litigation is not expected, documents should be maintained for at least a few years following an employees’ separation from the company. Even then documents should only be purged in accordance with a formal document retention policy. When in doubt, it is always better to preserve and maintain documents then destroy them.
Helpful Tip: When documenting, it is important to note that privilege will not likely attach unless the discussion is conducted by or through legal counsel (and even then the attorney-client privilege and work product doctrines may only apply under narrow circumstances). Thus, an employer should be careful that an investigation not produce harmful admissions or details that give rise to liability if litigation ensues. This is not to say that relevant facts and details be ignored or distorted, but the investigation should focus on verifiable facts. Opinions, conclusions, and speculation, especially when exposing the company to liability, should be avoided where possible.