Responding to Allegations of Workplace Discrimination and/or Harassment
Allegations of workplace harassment have swept the working world. Now, more than ever, it is essential to have a trusted employment attorney to guide you through what to do (and more importantly, what not to do) in the case of an allegation of harassment or discrimination in the workplace.
The #MeToo Movement has empowered many to speak up about workplace issues that they otherwise may have ignored. How an employer responds to an allegation of discrimination or harassment often has a direct impact on whether or not the matter ends up in litigation.
An employee notifies you that they have experienced discrimination or harassment in the workplace. Now what?
First, thank the employee for bringing their concerns to your attention. Avoid comments that sound like you are predisposed toward the accused or that imply that you’ve drawn any conclusions regarding the allegation(s) made. Ask the employee to provide a written statement detailing what occurred, when it occurred, where it occurred, and who, if anyone, was a witness to the alleged conduct. Do not ignore or brush off an individual who has made a complaint. Rather, assure the employee that their concern is being taken seriously and that an investigation will occur.
Next, a decision must be made regarding who will conduct the investigation. This decision should be made upon the advice of counsel. If your business has a HR Department, the investigation may be conducted by HR or a company representative. However, there may be reasons why the investigation should be conducted by someone outside your organization, such as an attorney. This decision should be made on a case-by-case basis and with the benefit of legal counsel. If HR or a company representative will be conducting the investigation, ensure that the individual responsible for conducting the investigation is confident regarding their role and what they should (and should not) do as part of the investigation. At the end of the investigation, a conclusion should be made regarding whether or not the allegation of discrimination or harassment has been substantiated. The result of the investigation should be communicated to the complaining employee.
If there is a finding that harassment or discrimination did occur, appropriate action must be taken. Determine the best course of action given the results of the investigation. This should be discussed with your employment attorney prior to the communication of the results of the investigation to the complaining employee and prior to the issuance of any discipline to the offending employee.
If the result of the investigation is that the allegation cannot be substantiated, clearly communicate the finding to the employee. Although there are exceptions, most employees who come forward to report a concern genuinely feel aggrieved. However, what many perceive to be discrimination and/or harassment does not meet the definition of illegal discrimination or harassment under the law. In this case, if there is a certain behavior that is found objectionable by the employee, a meeting with the accused to ask them to refrain from engaging in the “offensive conduct” may resolve the issue. If this is practicable, the complaining employee should be notified that the accused has agreed stop engaging in the “offensive conduct.” An employee who reports a concern in good faith, even if unfounded, should not be retaliated against or admonished for making the report.
If you have questions regarding how to respond to an allegation of workplace discrimination or harassment, contact Nancy K. Chinonis, experienced employment attorney at Cline, Cline & Griffin, PC via telephone at (810) 232-3141. Additionally, Cline, Cline & Griffin, PC conducts employment seminars for both management and staff regarding discrimination and harassment prevention and many other employment-related topics. Please contact (810) 232-3141 to schedule employment related training for your office.