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 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.
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.