Fair and Balanced – Harassment and Discrimination Workplace Investigations « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles

Fair and Balanced – Harassment and Discrimination Workplace Investigations

A strong policy prohibiting harassment and discrimination is worth little if an investigation over a complaint is badly handled. Among the important rules:

Don’t Delay – Failing to start or complete an investigation promptly creates a potential claim that the company condoned the alleged misconduct, thus increasing the risk of a legal claim;

Ensure no retaliation – Employees have the right to complain over perceived wrongful or unfair workplace conditions and should not be criticized, marginalized or disciplined for doing so.  Retaliating against a complaining worker is a separate basis for a lawsuit, even if the employee had no basis for speaking up.  Of course, falsifying information in a complaint is a disciplinary offense;

Investigator’s Only Agenda is a Competent, Fair Process and Result – The person responsible for handling the investigation should have no personal stake in the parties or the outcome. Obviously, assigning the alleged harasser’s closest friend in the workplace as investigator is a disaster by definition.  The investigation must include the opportunity for the accused to fully address all assertions made as well as the accuser to respond to potentially relevant information obtained from the accused and others;

Document, document, document – The investigatory and management should compile and maintain a thorough investigatory file on the matter.  It should include: (1) a copy of the original complaint; (2) detailed notes of each interview; (3) the name of each witness, whether that person was interviewed, and if not, why not; (4) any notes or documents provided by any participant in the investigation; (5) a final report summarizing findings and conclusions; and (6) planned follow-up monitoring;

Make a determination and communicate the results – The investigation should result in a clear written determination of the validity of claims based on the credible facts obtained.  An investigator has the ability and obligation to judge such credibility as objectively as reasonably possible. Management should monitor and confirm the fairness of the process prior to release of the results. Key elements of an investigative report include:

•           The time of, and information regarding, the initial complaint;

•           A summary of the allegations of the case;

•           A summary of the interviews conducted and documents compiled and reviewed, including credibility assessments;

•           A summary of the investigator’s factual findings; and

•           A statement of the recommended remedial action, if any.

Follow Up – Check in periodically with the complaining employee to ensure there has been no further harassment or discrimination and that there has been no retaliation and obtain that person’s written confirmation of the information supplied.

It is also sound practice for company management to include capable legal guidance through the entire process.