How to avoid liability for harassment!
By Brian P. Gillan, Esq.
A. Employee Training As A Means of Avoiding Liability For Harassment
Employers must ensure that all employees, particularly supervisors, are trained regarding equal employment opportunity (discrimination, harassment, and retaliation) issues to avoid liability. Supervisors must: (a) report to the appropriate personnel any comments or conduct, or reports of any comments or conduct, that might be considered harassing under company policy; (b) be familiar with the employer’s policy and procedure and recognize the various types of workplace harassment; (c) understand the rights of the accuser and the accused; and (d) take care to refrain from discussing the facts and circumstances involved in claims of workplace harassment with anyone other than those with a genuine need to know.
B. How To Investigate A Harassment Complaint
1. Select The Appropriate Investigator
Employers have several choices when deciding who should conduct a harassment investigation, including a member of management, Human Resources personnel, in-house counsel, or outside counsel.
An attorney is often an experienced and impartial investigator. Although the attorney may be able to protect some disclosures and documents involved in the investigation utilizing the attorney-client privilege and work product doctrine, as explained below, in a harassment investigation this protection is limited. If an attorney is not used, the investigator must remain alert to the potential risk of documents or tapes generated by the investigation becoming evidence in a lawsuit or government inquiry.
Any internal investigation should have the support of senior management and the full cooperation of employees. The investigator should be empowered to decide which individuals to interview, what issues to pursue, and when and where to conduct the investigation. The investigator should have the support of legal counsel in difficult or complex circumstances. The investigator should be expected to make factual conclusions and recommendations for management action. It will not meet the long-term needs of the organization if management establishes such restrictive guidelines for the investigation that the findings are unreliable.
An investigator must, among other things, have good interviewing skills, be able to assess credibility, be able to remain impartial, take thorough and accurate notes (which can be used as evidence), and be able to maintain confidentiality to the extent appropriate.
2. Prepare A Strategy For The Investigation
Employers must begin investigations promptly, even if they take awhile to conclude. The investigator should establish a time line, including each step that will be taken and a target completion date (which must often be adjusted). The chronology of interviews is important; the order in which information is received can contaminate or enhance the integrity of the process. If certain individuals may influence others, they should be scheduled later so they do not have that opportunity.
Strategy considerations include minimizing adverse publicity, “the rumor mill,” and adverse effects on employee morale and/or focus in addition to legal problems and financial losses. Investigators should also be prepared for premature disclosures or other events that may jeopardize their overall strategy. For example, delays could result from key witnesses relocating or leaving the company, the intentional or inadvertent destruction of physical evidence, or “tainted” versions of the events.
3. Strongly Urge A Written Complaint
Though not mandatory, it is almost always advisable from an evidentiary standpoint to have the complainant submit his or her complaint in writing and to explain that the written complaint will be used as the basis for the investigation. Ideally, the written complaint should include:
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The accused employee’s conduct and comments, including what was done or said, when, where, and who else was present;
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Who else has information related to the facts and circumstances;
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Whether the complainant let the accused know the conduct or comments were unwelcome and how and when that was done; and
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If the complainant reported these matters to anyone else, and if so, who, when, and who else was present.
4. Interview the Complainant
If the complainant does not want to put the statement in writing, circumstances do not permit you to obtain a written statement, or the investigator has already reviewed the written complaint, the investigator should interview the complainant. It typically is not a brief process.
The interview should start off with a review of the investigation procedure. The investigator should assure the complainant that there will be no retaliation for complaining (or, when interviewing witnesses other than the complainant, for providing information during the investigation). The employee should be instructed to report to the investigator any subsequent behavior believed to be retaliatory.
The written complaint, if available, should be used as the basis to begin questioning, though written complaints usually only scratch the surface. The complainant should be asked to explain in detail what happened, including: What was said or done? When? Who else was present? What other information supports the allegations? Very often, tough and embarrassing questions must be asked as well: What exact words were used? What did he or she call you? Where did he or she touch you? Can you describe the touch?
When concluding the interview, the investigator should explain that full investigation may require talking to other witnesses, the complainant’s and accused employee’s supervisor (assuming the supervisor is not the accused), and the accused employee. The complainant should understand that his or her name and allegations may have to be revealed during the course of the investigation. However, it should also be stressed that everything will be kept confidential to the greatest extent possible and discussed only on a need-to-know basis. To protect others’ privacy and to enable a full and fair investigation, the complainant should not discuss the matter with others. Other witnesses and the accused employee should be told the same thing. The complainant should understand that the investigator will report back at the conclusion of the investigation.
admin @ July 22, 2007