Your company has a clear policy against discrimination and harassment. It provides regular training on these topics to managers and employees. Positive but forceful notices about compliance appear throughout the workplace. Multiple methods for raising a complaint are provided, and company leaders have made nondiscrimination part of the corporate culture and ensure that all employees understand this expectation.
With all these important steps taken, there will be no discrimination or harassment, right? Well possibly, but more likely the result will only be far fewer incidents than would have occurred otherwise because no steps can truly assure there will never be an incident. So, the key for counsel in preventing (or at least limiting) liability for such incidents is how a company responds to the incident when it becomes known.
The obvious first step is to investigate. The sooner you can begin investigating, the better. A prompt investigation will provide clearer and fuller information from those interviewed and easier gathering of any physical evidence. It also immediately ensures any improper actions do not continue, and it underscores how seriously the company treats such issues.
The investigation should begin promptly regardless of how the situation is raised. Whether through a formal or informal complaint, an anonymous call or letter, a rumor or third-hand account or some other means, once someone in management or legal or human resources knows about the matter, the investigation must happen right away. If you cannot start within hours, no more than a day or two should pass before an investigation begins. Waiting longer may not be deemed prompt by a judge or jury, or by the complaining employee and others who are watching how the company responds.
The investigator should be trained on how to examine incidents of alleged improper conduct and ideally should be experienced in conducting investigations. Critically, the investigator must be and preferably should be perceived as fair and impartial. If the investigator is not objective, has some obvious stake in the outcome, or is seen as biased by the accused, the accuser or others, the investigation is already flawed.
The investigator must thoroughly and completely examine the situation. Interview the complaining employee or alleged victim to get all the details of what happened. Next, interview the accused and all witnesses to whatever occurred. Ask everyone interviewed if they know of any witnesses and interview those identified, too. If you have to re-interview someone based on new information, do it. Consider getting signed statements or having witnesses sign or confirm the notes taken in the interview are accurate to prevent disputes later about what was said. Ultimately, getting the investigation completed is important, and the investigator should spend the time necessary to gather all the facts, including documentation and other evidence.
The investigator must be mindful of confidentiality. Information about the incident, the witnesses, and the facts and evidence gathered should be kept confidential and only disclosed to those with an absolute need to know. Everyone involved or interviewed should be told of their obligation to keep the conversations and their knowledge confidential, and asking them to sign a confidentiality agreement to that effect may be appropriate.
Even when prompt and thorough, many investigations fail to lead to an obvious conclusion. Instead, alleged harassment or discrimination incidents are often “he-said, she-said” situations. So, an investigator always needs to consider the credibility of all interviewees:
- Who has a motive to be truthful or biased?
- What are the histories of those involved?
- Are the chronologies of events logical, factually correct, and do they square with others’ versions or with documentation and available physical evidence?
Further, witnesses’ demeanor and consistency bears significantly on their credibility. Body language and reactions in the interviews can be telling, and witnesses who change their stories raise red flags. The investigator should factually note witnesses’ credibility, both positively and negatively, throughout the investigation.
Once the investigation is complete, a conclusion must be reached about whether there was improper conduct. If the answer is “yes,” appropriate action to remedy the situation and discipline the individual(s) who acted improperly is the final determination. This is not the investigator’s call. It is handled by the appropriate level of management, taking into consideration the results of the investigation along with all other factors that affect disciplinary decisions, including the employee’s tenure, position, history and consistency with past comparable incidents. As the saying goes, “The punishment should fit the crime.” All options should be considered, but ultimately, the company must take action that is reasonably expected to remedy the situation and ensure that the improper action is never repeated.
Whether wrongdoing is found or not, the accuser and accused should be informed of the outcome of the investigation. Privacy concerns may prevent telling the accuser of specific disciplinary actions taken, but the employee should be told action was taken and they should be encouraged to report any further instances of misconduct. Wise employers will periodically follow up with such an employee, even if there are no further reports of problems.
Finally and significantly, all employees involved should be reminded that retaliation against the accuser and any witness cannot happen and will not be tolerated. Those involved should be followed up with (just like with the accuser) to ensure they do not feel that they are being subjected to retaliation.
Although every situation is different, conducting an appropriately prompt, fair and complete investigation into an incident of improper conduct is critical to limit potential liability and reduce the likelihood of litigation down the road. On the flip side, failure to conduct an investigation, or conducting one that is (or is perceived as) incomplete or a whitewash, can do even further harm than that caused by the improper conduct itself. When a company becomes aware of an incident, there is only one chance to correctly handle it. Getting it right makes a big difference in the ultimate impact and outcome for the affected employees, the workforce and the company.