When an employer learns of discrimination, or allegations of sexual or other harassment, the employer has a duty to launch a prompt, impartial, and thorough investigation. Effective investigations can promote a safe, fair and productive work environment. They can also help prevent harassment and discrimination from recurring. Here are some guidelines to help employers conduct a comprehensive investigation.
Take all complaints seriously.
An employer that becomes aware of sexual or other harassment allegations should:
- Take all complaints (including formal and informal ones) seriously, regardless of who is involved;
- Encourage every employee to report an issue before the situation becomes severe or pervasive; and
- Provide employees with multiple avenues to raise complaints, including through their own supervisor or other supervisors and with HR.
Launch a prompt investigation.
Start an investigation as soon as possible, remain impartial and be thorough throughout the process. Depending on the circumstances, consider whether an impartial third-party investigation is needed. When possible, more than one individual should be involved, including acting as a witness during interviews. Investigators should be trained on the process and instructed to remain objective.
Protect confidentiality where possible.
An employer should protect the confidentiality of the investigation to the best of their ability. However, avoid promising confidentiality, since it may not be possible to keep all information completely confidential. Explain that the company will keep information confidential to the extent possible for a thorough investigation, and as allowed under the law. Report information learned from the investigation only to those who have a legitimate business need to know.
Create an investigation file.
Create a confidential file to document the complaint and the steps taken throughout the investigation process. The file should be kept in a secure location separate from personnel files. In the file, retain the investigator's report and all:
- Interview notes;
- Communications with all parties and witnesses;
- Written witness statements;
- Documents that relate to the allegation; and
- Documentation of the investigation results and any remedial action taken.
Take steps to prevent retaliation.
Retaliation is where an employer takes or threatens to take adverse employment action against an individual for engaging in activity that is protected under the law (also known as protected activity). Adverse employment actions can include termination, suspension, refusal to hire, demotion, failure to promote, negative performance evaluations, reduction of pay or hours, negative references, increased surveillance, disparaging remarks, or threats of adverse action.
Various nondiscrimination laws prohibit retaliation in any aspect of employment. There are also prohibitions against retaliation for taking job-protected leave, filing workers' compensation claims, and raising ethical, financial or other concerns unrelated to employment discrimination.
Given retaliation continues to be a frequent complaint filed with the Equal Employment Opportunity Commission (EEOC):
- Make sure employees understand that they will not be retaliated against for raising complaints or participating in a workplace investigation;
- Include anti-retaliation provisions in equal employment opportunity, anti-harassment, and other applicable policies, and remind all parties of these provisions at the outset of the investigation; and
- Ensure that the company environment encourages employees to voice their complaints without fear of retaliation.
Prepare to interview appropriate parties.
Employers should identify who they will interview (the complainant, each witness, and the accused) and prepare a list of questions. Interview each party separately, in private, ideally with another individual to serve as a witness to the investigation. Many investigators choose to speak with witnesses before interviewing the accused.
During interviews, never offer an opinion or say anything that would indicate a conclusion has already been reached (such as, "I believe you," "this is a meritless complaint," etc.). Take detailed notes and look for inconsistencies, opportunities for clarification, additional evidence, and the names of other potential witnesses.
Interview the complainant.
Explain the investigation process and ask the complainant questions related to what happened, who was involved, when the alleged event happened, and how it has affected them. Other questions should address whether there were witnesses or whether other co-workers may have been subjected to the same or similar behavior. Repeat your notes back to the complainant to ensure the allegations are understood and the complaint is accurately captured.
Interview witnesses.
Interview witnesses separately and remind them that your business encourages employees to participate in investigations without fear of retaliation. Inform witnesses that you are conducting an investigation and the nature of the allegation, and ask if they have witnessed (or were subjected to) inappropriate conduct. If the witnesses have information pertaining to the situation, ask for the specifics of what they observed before, during and after the alleged incident.
Interview the accused.
Explain the accusations that have been made against the individual. Describe the investigation process and assure them that no decision has yet been made regarding the merits of the complaint. Ask the individual for their version of events and whether there are any witnesses or evidence that may corroborate their story. Ensure that the individual provides a response to each of the complainant's allegations.
Gather evidence.
If there is evidence of the alleged misconduct beyond witness statements, such as emails, instant messages or video surveillance, take all necessary steps to protect and preserve it. It is a best practice to preserve all business records, whether in paper or electronic form, as soon as you learn about a dispute. This is especially important if an employer reasonably anticipates a legal claim. Consult legal counsel to ensure appropriate holds are placed on all relevant documents and information.
Evaluate credibility.
The resolution of employee complaints often depends on the credibility of those involved in the investigation. Establish and use guidelines for weighing the credibility of the parties in an investigation, such as the consistency of each individual's statements, corroborative or contradictory evidence and other relevant factors.
Prepare the report.
When preparing the investigation report, include a chronology of events, a list of witnesses, the facts of the case and any evidence the company obtained.
Note: Employers may be asked to include conclusions they have made regarding the incident(s) in question and their recommendations for preventing that type of behavior in the future.
Take corrective action.
If an investigation reveals that harassment or discrimination has occurred, take immediate and appropriate corrective action. The corrective measure should help prevent future incidents and be proportionate to the severity of the misconduct.
Review employment decisions.
Carefully review all employment decisions to ensure they are based on legitimate business reasons. Be consistent with how the company has handled similar situations in the past, and make sure there is appropriate documentation that supports the business's decisions.
Follow-up.
Notify both parties of your findings and the corrective action that is planned, if applicable. When sharing results with the complainant, confirm that they have been properly heard and understood, even if they disagree with the results. Additionally, set a timeframe to follow up with the complainant to ensure the conduct is no longer occurring.
Follow best practices.
Issue clear policy statements.
Employers should encourage employees to come forward with complaints without fear of reprisal and provide a process for employees to report complaints and retaliation claims.
Train supervisors.
Provide supervisors and HR personnel with training on how to respond if an employee complains of discrimination, harassment, or other unlawful conduct. Also, ensure employers understand their responsibility to prevent and respond to retaliation complaints.
Note: Some states require employers to provide anti-harassment training on certain scheduling cadences. Check the laws that apply to your jurisdiction to ensure you are meeting these requirements.
Conclusion
Take all workplace harassment and discrimination claims seriously. Ensure a prompt, thorough and fair investigation and follow best practices to help ensure the workplace is free of retaliation, and that supervisors are trained on their responsibilities under applicable laws.
