Even the most altruistic employers, at one point or another, will likely face an employment discrimination complaint against their company. Even meritless discrimination claims can cause potential exposure to costly attorney fees and/or significant settlement amounts to the complainant. Juries are unpredictable and litigants often use this fact to extract large settlement sums from employers trying to avoid the costs and unpredictability of litigation. If claims are handled appropriately, costly results can often be avoided (or at least minimized).
Upon the initiation of a complaint, companies need to thoroughly investigate allegations of employee misconduct—discrimination, harassment, employee theft, drug or alcohol use—and take remedial measures, if appropriate.
The following steps are a suggested checklist to use in employment discrimination complaints. A thoughtful and consistent approach to employment discrimination complaints can help to minimize potential liability and resolve the underlying problem, if one exists, with the ultimate goal of avoiding the cost and unpredictability of litigating employment claims.
- 1. STEP ONE—Develop a Policy and Point Person for Complaints
Every company should maintain and distribute an anti-harassment policy that contains a clearly articulated complaint procedure. All employers should have strong anti-harassment / non-discrimination policies. The policy should state, in clear terms, how employees may complain of harassment and discrimination and to whom such complaints should be directed. The importance of having these policies in place cannot be overstated. First of all, having strong policies against discrimination will hopefully curb such conduct in the workplace. Secondly, if such a policy and internal reporting procedure are in place, and if the employee does not utilize them, the employer might have an affirmative defense to defeat the employee’s claim. The employer must be provided the opportunity to investigate or remedy the issue.
Companies should appoint someone within the organization to investigate complaints of workplace harassment (typically, the human resource director, personnel manager, etc.). This person should be charged with immediately initiating the investigation procedure. He or she should be knowledgeable of the company’s policies and should be able to remain impartial, objective, and fair in his or her investigation.
- 2. STEP TWO—Document, Document, Document!
Upon receipt of an employment discrimination complaint, the employer should ask the employee/complainant for a full narrative of the facts giving rise to his or her issue. The investigator should ask questions, record key persons involved, and draft a comprehensive narrative for the file. To assist in this process, the employer may develop and provide a written harassment complaint form to employees.
- 3. STEP THREE—Investigate and Act Promptly
After developing—and recording—the full narrative of the facts allegedly giving rise to the complaint, employers should then promptly investigate complaints of harassment and/or discrimination. Both the alleged victim and the alleged harasser should be interviewed. Prompt and effective response to complaints can limit or entirely eliminate employers’ liability. It is imperative that employers implement an effective mechanism to investigate and resolve workplace complaints and that the procedure be written down and accessible to the workforce.
The employer should act promptly, initiating the investigative process and conducting a thorough investigation of the allegations. The employer should conduct interviews with all those alleged to have been involved and record the conversations (i.e., document the process).
No attorney-client privilege will attach to this investigation unless it is conducted by or through legal counsel, so great care should be taken to ensure the investigation does not produce admissions against interest or a road map for a plaintiff’s attorney. To avoid these problems, the investigator should limit questions to the facts, only. Any analysis of the merits of the claim should be done with, and at the direction of, legal counsel to ensure privilege attaches.
- 4. STEP FOUR—Evaluate and Take Action, if Appropriate
Finally, after the investigation is complete, the employer should evaluate the merits of the complaint and determine if corrective action is needed. Consultation with an attorney is often helpful in this step to evaluate the legal merits of the complaint.
In the event the employer finds merit to the employment discrimination complaint, it should then take quick, appropriate, and proportional corrective action. It should respond proportionally to the complaint with a penalty to the wrongdoer or sometimes just with implementing additional training to avoid the issue in the future.
It is also important to respond consistently to employment discrimination complaints and corrective actions. When an employer seeks to determine the appropriate response the information uncovered in an investigation, the employer should consider how similar investigations were resolved. How were similar offenses addressed previously? The employer should avoid creating claims of differential treatment by imposing inconsistent penalties to similar underlying offenses.
In addition to the above steps, to minimize exposure from employment discrimination claims, all managers and supervisors should be trained to identify conduct that constitutes harassment, discrimination, and retaliation. They should be trained how to respond to issues in the workplace and reports of misconduct. Failure to adequately train managers and supervisors could expose an employer to significant liability if litigation arises—in a discrimination case, courts will look to the measures taken by the employer to remedy the situation in assessing liability.
Performance evaluations can also be useful in supporting the nondiscriminatory and job-related basis for employment decisions. For example, if an employee is terminated for nondiscriminatory reasons, he or she may then assert a claim for employment discrimination after he or she is let go. When this occurs, a pre-existing performance evaluation can be very useful in disproving the merits of his or her claim. Performance of all employees should therefore be evaluated and documented at least once a year. Evaluations should be specific in regard to achievement of job duties, and evaluation forms should be developed in further attempt to mitigate the potential exposure from an employment discrimination claim.