Regardless of the size of your business, odds are that you are subject to one or more of the many federal, state and/or local discrimination laws that prohibit employment discrimination, harassment, and retaliation. Under these laws, all employment-related decisions must be based on legitimate work-related criteria. The laws apply at all stages of the employment relationship, from recruiting and hiring through termination. As a result, you could find yourself on the receiving end of allegations by an employee or applicant that someone in your company violated one or more of the employment discrimination laws.
The impact of these allegations can be very broad: good employees may leave their jobs; your reputation can be tarnished; you can lose customers; you can spend a lot of money on attorneys and other resources to defend against the allegations and, as a result, productivity and customer service can suffer. And the list goes on. Therefore, how and when you respond to the allegations will have a tremendous impact on the outcome. And it does not matter whether an applicant or employee came to you with the claims or whether you reasonably should have known that the conduct was occurring. In either case, a timely and appropriate response by you is critical.
The various equal employment opportunity (EEO) laws require that allegations of discrimination are promptly and thoroughly investigated. As soon as you learn of the allegations or suspect that unlawful behavior may be taking place, you need to design and implement a proper investigation. Detailed planning is critical because you want to be sure that the scope of the investigation and its documentation are targeted to ferret out whatever conduct may be occurring. Your interest is severalfold: protecting employees and stopping the conduct if it is occurring; complying with the law; and defending yourself against the allegations.
You can (and should) speak with human resources professionals or legal counsel to help design a proper investigation, which they can conduct for you. But regardless of who conducts it, the bottom line is that a prompt and thorough investigation must be done.
Some of the considerations for designing and implementing an appropriate investigation are:
- Who is a proper person to conduct the investigation?
Employers can undermine an investigation’s credibility by selecting the wrong investigator. The person must be experienced and have more than a basic understanding of the discrimination laws. And he or she should not be involved in the underlying allegations or have a particular interest in the outcome. This can be a challenge when you are using your own HR professionals as the investigators because oftentimes they will have been in conversation with the employee throughout the course of events. You can also use outside counsel or consultants to investigate. But regardless of whom you chose, keep in mind that they may be called as a witness if there is litigation.
- What should be done before interviewing any witnesses?
First and foremost, decide who needs to be told about the allegations at this stage. Certainly, HR and legal counsel need to know. But does a particular manager need to be told or would that undermine the investigation or raise a risk of retaliation against the complaining employee? These are critical questions to consider with your counsel immediately.
Also, any documents that may be relevant to the investigation should be reviewed by the investigator. That includes hard-copy and electronic documents and communications (including e-mails, etc.). Personnel files, managers’ desk files and notes, HR policies, performance reviews, and HR files pertaining to the complaining employee and possible witnesses are just some of the items to gather. And be sure that you’ve communicated to appropriate people not to destroy any documents. Destruction of any documents, without first getting some legal advice about whether destruction is appropriate, can undermine your entire investigation and defense position.
Creating an Investigative Plan
To be sure that your investigation is thorough, consider creating an outline of the investigative plan. The outline can be a “work in progress” since the investigation may need to expand in different directions once you’ve started. But at the outset, you should have a map that pinpoints your plan and provides an organizational structure. At the very least, be sure to include sections in the outline that give the name of the investigator and their position title, the list of the documents reviewed and to be reviewed, the names of potential witnesses, and the issues to be investigated. You can also use the outline to keep summary notes of the facts you learn as you interview witnesses.
But there’s also an important caveat: you should consider speaking with legal counsel before creating the outline so that you have a clear understanding of how the investigation outline may be used if the allegations are not resolved. That document may be discoverable if the employee files an agency charge or lawsuit against you. So you need to be comfortable that you are documenting properly for those possible events.
Conducting the Investigation
Depending on the allegations, the odds are that you will interview the complaining employee first. And the information you learn may help you refine your investigative plan. Hopefully, the employee will give enough specific information that you can confirm the scope of the allegations, the documents that may be relevant, and the list of potential witnesses to interview. Revise your outline as appropriate. And be sure during the interview to reinforce for the employee that the company has a nonretaliation policy and they should come forward if they believe they are being retaliated against. If the employee is no longer working for you, be sure to ask your attorney about contacting him or her because he or she may be represented by counsel.
Again, depending on the allegations, the next people to interview are usually the alleged wrongdoers. You may decide, however, that you need to interview other witnesses first because you don’t have enough information yet for those interviews. Regardless, make sure you let these witnesses know that they should not discuss the allegations or investigation with anyone without checking with the investigator. If they talk about it, they could intentionally or unintentionally undermine the investigation. And they should be told about the nonretaliation policy too.
Keep revising your investigative plan as you learn about more information that needs to be reviewed or new witnesses that should be interviewed. And keep in touch with your counsel along the way so that you are scrupulous about appropriate documentation and the investigation remains on track.
Responsive Action After the Investigation Is Done
After you finish the investigation, determine whether anything inappropriate occurred. And regardless of whether the conduct could be considered illegal, you’ll want to implement a plan to address inappropriate behavior too. After all, inappropriate behavior in the workplace is something you should not want to tolerate.
It’s a good idea to speak with counsel or HR about your conclusions. They can help you decide how to document the results and what remedial actions you should take. If you decide that nothing inappropriate occurred, document that fact and the reason for your conclusion. And you still may make recommendations for training or counseling as a safety measure and to support a message to employees that you provide a positive work environment.
If you conclude that something inappropriate did happen, work with counsel to document it appropriately and decide on remedial actions. Your remedial actions should be designed to stop the conduct, prevent it from occurring in the future, and restore trust-based relationships with your employees. Keep in mind that you need to respond to what you learned in a way that demonstrates you conducted a thorough investigation and took the situation very seriously. All the while, your documentation and investigation should be defensible in court.
Dealing with allegations of unlawful discriminatory conduct is unpleasant for both the employee and for you. But think of it as an opportunity to improve the overall work experience for everyone while you are also trying to address your legal risks. The best workplaces are those where employees feel welcome to participate fully and, as an employer, you have a tremendous interest in providing that kind of environment. In addition to minimizing legal risks, it will help you attract and retain valued employees who are loyal and care about the quality of your products, services, and customer relationships. Work closely with human resources and legal counsel so that you can work effectively and efficiently to deal with these issues.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.