Reduce your legal risks by handling discrimination and harassment complaints quickly and carefully.
Most employers are anxious when facing with discrimination or harassment complaints. And for good reason: These complaints can lead to workplace tensions, government investigations, and even costly legal battles. If the complaint is mishandled, even inadvertently, an employer may unknowingly leave the business without knowing it.
However, if you will take the complaint seriously and follow good strategy to deal with it, you will be able to reduce the likelihood of a legal issue and even improve your employee relations in the process.
Here are some of the basic rules to be followed if you receive complaints of discrimination or harassment.
Keep an open mind
Many employers have a tough time believing that discrimination or harassment might be happening right under their noses. As a result, complaints are often not investigated, assuming they cannot be true. Unfortunately, not investigating a complaint is a sure way to go to court. Investigate all complaints you receive. Do not result to any conclusions until the investigation is complete.
Treat the complainant with respect and compassion.
Employees often find themselves difficult to complain about certain discrimination or harassment. They feel vulnerable and scared. This can have an impact on the quality of their work and can also lead them to seek outside help from attorneys. When an employee involves you with concerns about discrimination or harassment, be understanding. An employee who sees that you are taking the problem seriously is less likely to take you to a government agency or court.
Don't shoot the messenger
You may be tempted to get angry at the complaining employee that they now have to deal with the specter of discrimination and harassment in their business. But do not forget that the complaining employee is that the victim and not the explanation for the problem. If you allow yourself to get angry at the employee, you expose yourself to claims of unlawful retaliation. You also run the risk of polarizing your workplace, damaging morale, and reducing productivity.
Do not retaliate
It is against the law to punish an employee for complaining about harassment or discrimination in the workplace. The most obvious parts of retaliation are termination, demotion, disciplinary actions, payment cuts, or threats to try any of those things. Subtler forms of retaliation may include changing the accuser's shift schedule or work area, changing the accuser's job responsibilities, or isolating the accuser by keeping him out of meetings and other office functions. For more information on retaliation, see Preventing Employee Retaliation Claims.
Follow established procedures
If you have an employee handbook or other documented policies related to discrimination and harassment, follow those policies. Don't open up to claims of unfair treatment by bending the rules. For more information on employee handbooks, see Why you ought to create an employee handbook.
Do a little research on discrimination and harassment law - what it is, how it is proven in court, and what your responsibilities as an employer are.
Interview the people involved
Start by talking to the person who complained. Find out exactly what the employee's concerns are. Get details: On what was said or done, when and where or who else was there. Take notes from your interviews. Then talk to any employee accused of discrimination or harassment. Get details from them too. Be sure to interview any witnesses who have seen or heard any problem behavior. Gather all relevant documents.
Look for corroboration or contradiction
Discrimination and harassment complaints often provide the classic "he said / she said" example. Often times, the accuser and the accused offer different versions of the incidents, leaving you with conflicting stories. You may need to address other sources for clues. For example, schedules, time cards, and other attendance records (for trainings, meetings, etc.) can help you determine if each part was where it claimed to be. Witnesses, including coworkers, vendors, clients, or friends, may have seen a part of an event.
Keep it confidential
A complaint of discrimination can polarize a workplace. Workers are likely to side with the complaining employee or the accused employee, and thus the rumor mill will start working overtime. Worse, if there are too many details about the complaint that are leaked, you'll be accused of damaging the alleged victim's reputation, and can be sued for defamation. Avoid these problems by insisting on confidentiality and practicing it in your research.
Write it all down
Take notes during your interviews. Before the interview ends, review your notes with the interviewee to make sure they got it right. Keep a journal of your research. Write down the steps you've got taken to urge to the reality, including the dates and locations of the interviews you've got conducted. Write down the names of all the documents you have reviewed. Document any action taken against the accused or the explanations for deciding to not take action. This record will be able to protect you later if your employees will claim that you just ignored their complaint or conducted a unilateral investigation.
Cooperate with government agencies.
If the employee files a complaint with a government agency, that agency can investigate. They will likely ask you to provide certain documents, to give your side of the story, and to explain any efforts you have made to resolve the complaint yourself. Be cautious, but cooperate. Try to provide the agency with the materials you request, but remember that the agency is gathering evidence that would be used against you later. This is a good time to consider hiring an attorney to advise you.
Consider hiring an experienced investigator
Many law firms and personal consulting agencies will investigate workplace complaints for a fee. You might consider bringing in outside help if quite one employee complains of harassment; the accused may be a high-ranking official in his business, the accuser has made the complaint public, either in the workplace or in the media; the accusations are extreme (reports of rape or assault, for example); or, for whatever reason, you feel too personally involved to make a fair and objective decision. Contact Edge Investigations today!
Take appropriate action against wrongdoers.
Once you have gathered all the available information, sit down and decide what you think really happened. If you conclude that some sort of discrimination or harassment occurred, determine the way to discipline wrongdoers appropriately. Termination may be justified by more egregious types of discrimination and harassment, such as threats, stalking, or repeated and unwanted physical contact. If the harassment stems from a misunderstanding (for example, a misguided attempt to ask a coworker on a date with a coworker), less discipline, such as a warning or advice, may be necessary. Once you've got selected an appropriate action, take it quickly, document, and notify the accuser.