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 Real Workplace Issues |
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Welcome to the latest issue
of "Real Workplace Issues," a newsletter dedicated to
providing our clients and friends with practical,
everyday employment law and HR
information. In 2003, the New Hampshire
Supreme Court decided a case in which a female
employee of the MPB Corporation sued for
sexual harassment and retaliation when she was
fired eight days after complaining about being sexually
harassed by her superior. Managers for the
Corporation conducted an inadequate investigation of
the harassment complaint, failing to involve the
human resources department and taking no action
against the accused. The jury awarded the employee
over $83,000 in lost wages and emotional distress,
and over $350,000 in punitive damages due to the
Corporation's failure to enforce its own
anti-discrimination policy. Madeja v. MPB
Corp.,
821
A.2d 1034 (N.H. 2003).
While this case certainly highlights the need for
companies to thoroughly investigate all complaints of
harassment/discrimination, many employers are
unclear as to how to go about doing so. In this
newsletter, we will take a closer look at the essential
components of an effective
harassment/discrimination investigation...
Once an employer or its agent
becomes aware of the alleged
harassment/discrimination, an investigation should
be commenced without delay. Likewise, the
investigation should be completed as soon as
possible.
When an employee approaches a
manager, supervisor or human resources
representative with a complaint of harassment or
discrimination, the company/employer thereafter
becomes obligated to investigate that employee's
complaint.
The first determination that needs
be made is who will conduct the investigation. One
potential "internal" candidate is a member of your
company's human resources department. Oftentimes,
however, these investigations are extremely complex
and time-consuming, and a company's HR
department might lack both the experience and time
necessary to thoroughly investigate the
claim.
Another choice is to retain an
outside firm to conduct the
investigation for your company. Such firms are usually
made up of lawyers who have the experience and
expertise necessary to conduct a proper investigation.
In addition, much of the work conducted by a lawyer is
"privileged" and may not be used in court should the
claim lead to litigation, while no such privilege applies
to an investigation conducted by internal HR
personnel.
Once the investigator is chosen,
other preparatory matters for consideration include
which employees to interview, in what order to
interview them and where the interview should take
place.
Who? Clearly it is
necessary to interview both the complainant and the
accused. However, during the course of an
investigation, it might become apparent that other
employees were present at the time and place of the
alleged harassment/discrimination, or that other
employees have information relevant to the
complainant's claim(s). In such cases, it might
be necessary to interview these additional witnesses.
It is important to note, however, that an investigator
should avoid interviewing too many unnecessary
witnesses, as this often disrupts the
company "culture," damages employee morale and
makes preserving the confidentiality of the
investigation an almost impossible task.
In What Order? The
complainant should be interviewed first, followed by
any relevant witnesses before interviewing the
accused. By employing this method, the investigator
is armed with as much information as possible with
which to question the accused, and is better able to
obtain rebuttals/responses to all of the complainant's
claims.
Where? The
interview should be conducted in a confidential,
private area with no distractions.
It is critical that the investigator
take the time beforehand to prepare appropriate,
specific questions for all of the people he/she plans
on interviewing.
When interviewing the
complainant, the investigator should ask questions
which are designed to get at the "who, what, where,
when and how" of the complainant's claim(s). The
investigator
should also ask the complainant what he/she
considers a potential resolution to the problem.
When interviewing the accused,
the investigator should note all of the complainant's
claims and elicit detailed responses to each one. All
interviewees should be reminded of the company's
anti-harassment, anti-discrimination and
non-retaliation policies, as well as encouraged to
contact
the investigator should they think of any other relevant
information or have any questions. It is also a good
idea for the investigator to ask them if they know of any
other relevant people that should be interviewed, and
they should be reminded that confidentiality of the
investigatory process is of the utmost
importance.
After many years of conducting
investigations, one thing is clear to us - no matter how
convincing a particular witness is, it is best to reserve
making judgment until the end of the interview
process. The purpose of conducting interviews is to
gain as much information as possible, but to also
assess the credibility of all parties involved. Each
interviewee, however, is just a "piece of the puzzle,"
and the credibility of each individual should not be
evaluated until each has had a chance to tell his/her
side of the story.
After all the information has been
gathered and analyzed, the investigator should
memorialize his/her conclusions as to the veracity of
the complainant's claims and the credibility of the
parties involved. The investigator should also
recommend what action your company should take.
However, the investigator might also be in a position
(especially in cases where the investigator is an
outside firm) to recommend changes to your
company's policies and practices in order to better
prevent similar situations from occurring in the
future.
Investigating
employee claims of
harassment/discrimination is a complex and arduous,
yet necessary process. An ineffective investigation
procedure which is inconsistently applied reflects
negatively on a company. As an employer, you want to
send the message that you take your own
anti-harassment and anti-discrimination policies very
seriously -- a message that will prevent and help
defend against future litigation.
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