Workplace Investigations for Harassment, Discrimination and Retaliation

August, 23 2024

When an employer is confronted with a complaint of alleged workplace harassment, they must be well-versed in the fundamental questions necessary for conducting a thorough investigation. Regardless of how minor the complaint might initially appear, the employer must investigate the matter immediately. This duty persists even if the complainant does not wish for an investigation to take place.

The guidelines set forth by the Equal Employment Opportunity Commission (EEOC) require employers to initiate investigations upon becoming aware of any allegations of workplace harassment. Furthermore, the EEOC stipulates that following any remedial actions, the employer must carry out follow-up inquiries to ensure that the victim has not experienced any unlawful harassment and that the harassment has ceased.

While anti-harassment training serves as a preventative measure to reduce the likelihood of such incidents, any complaints of harassment must be taken seriously and investigated diligently. It is also crucial that those conducting the investigations are adequately trained in the specific nuances and procedures of harassment investigations

Understanding HarassmentComplaint

First and foremost, it’s crucial to define what constitutes a Harassment Complaint. These arise when an employer retaliates against an employee for reporting illegal conduct, such as discrimination or a protected complaint. Unfortunately, Harassment Complaints are more common than one might assume; in 2020, a staggering 60% of all EEOC charges involved allegations of retaliation

• Whistleblower Retaliation: An employee reports a safety violation to authorities and subsequently faces demotion and undesirable task assignments.
• Reporting Discrimination: An employee who files a complaint about racial discrimination finds themselves overlooked for a promotion despite being highly qualified

Retaliatory actions can manifest in various ways, including denial of promotions or raises, termination, suspension, reassignment, pay cuts, increased workload, or even verbal or physical harassment

An 8-Step Checklist for Investigating HarassmentComplaint

When faced with a Harassment complaint, addressing it promptly is critical. Whether the investigation is conducted internally or outsourced to legal experts, here are the essential steps for a thorough investigation

1. Receive the Complaint
   • Officially document the complaint promptly.
   • Maintain confidentiality for both the complainant and the accused.
   • Assess neutrality and consider external assistance if needed
2. Conduct an Initial Assessment
   • Clarify allegations and gather initial information within 2-3 business days.
   • Review communications from the complainant.
   • Determine if there is evidence of a protected complaint and its timing relative to the alleged retaliation.
   • Inform the complainant about the investigation process and, if possible, separate the involved parties to prevent further issues.
3. Interview Witnesses
   • Prepare open-ended questions and conduct separate, private interviews with the complainant and witnesses.
   • Document interviews accurately and comprehensively.
   • Verify whether the subject of the investigation was aware of the complaint.
4. Review Documentation
   • Examine relevant company policies, procedures, and records.
   • Assess the timeline of events and determine if performance issues are a pretext for retaliation.
   • Consult an attorney if necessary to understand the relevant laws.
5. Make Credibility Determinations
   • Evaluate the credibility of all parties and witnesses, noting that a longer time between the complaint and harassment weakens causal connections.
6. Reach a Decision and Provide Recommendations
   • Conclude the validity of the complaint based on a preponderance of evidence.
   • Recommend disciplinary actions, policy changes, or training as needed.
   • Ensure prompt implementation of corrective actions.
7. Communicate Findings to Involved Parties
   • Follow up with both the complainant and the respondent to conclude the investigation.
8. Adopt Preventive Measures and File Necessary Reports
   • Implement preventive measures with management to reduce future complaints.
   • Consider additional training on communication or management practices.
   • Report the investigation’s outcomes to relevant stakeholders and authorities as necessary.

By adhering to these steps, HR professionals can adeptly manage workplace Harassment complaints, fostering a fair and just work environment for all employees.