How to Handle A Complaint of Discrimination or Harassment

Employers and employees need to be mindful in how a complaint is made and investigated.  An employee should follow the procedure in any employee handbook in making a complaint of discrimination and/or harassment and an employer should follow any handbook outlined procedures for investigating.  An employer, however, has obligations to investigate regardless of how it learns of possible harassment or discrimination.

One of the first and important questions is whether the complaint can be kept confidential.  The short answer is no.  An employer cannot promise confidentiality as there are obligations it has to investigate and talk to witnesses to determine what happened and the appropriate action to take. An employer, however, should do everything possible to keep the complaint as confidential as possible.

The first step for an employer in any investigation is determining who will handle the investigation and then interviewing the person who complained of discrimination or harassment.  The investigator should try to gather as many facts as possible and take detailed notes.  The information learned during this meeting will help guide the investigation as to what additional evidence needs to be gathered and who needs to be interviewed.  The investigator should then strive to gather as many facts as possible from all witnesses and sources.  What happened?  Where and when did it happen?  What was said?  Who witnessed the events?  Are there are documents/emails/texts/telephone messages?

Employers should keep a separate file regarding the investigation and document all the steps and interviews taken during the investigation, as well as the remedial action taken at the end of the investigation.  This file is separate from any employee file.

Complaints should be taken seriously, especially if they involve allegations of illegal discrimination based on sex, race, national origin, disability, age, or religion.  Whether to hire an outside firm to help investigate the matter depends on the type of the discrimination and/or harassment allegations and the ability of the employer to devote the necessary time and personnel to conduct a thorough investigation.  If the accusation involves criminal conduct or is lodged against a high level employee in the company, then an outside investigator may be in a better position to conduct the investigation. There should not be delay in investigating, however, as it could result in further harassment as well as the loss of relevant evidence and witnesses.

At the conclusion, a decision needs to be made on what likely happened and the appropriate action to take, even if it is a decision to take no action.  The available remedies are not limited to direct action against employees, but can also be combined with training/education to the workforce or individuals. An employer who fails to investigate or take appropriate remedial action exposes itself to not only poor employee morale, but legal action.

It is illegal for an employer to take any adverse retaliatory action against any employee for making a complaint.  If an employer is considering taking any action that could be deemed adverse, it is best to first seek legal advice.

About the Author: Jennifer Eber https://orr-reno.com/our-people/jennifer-a-eber/

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