From Complaint to Conclusion: Best Practices for Harassment Investigations

Navigating Harassment and Investigations in the Workplace

Harassment and investigation issues remain a critical area for employers. In 2023 alone, the EEOC reported collecting $664 million in damages from harassment allegations, and this figure does not include damages from private lawsuits. The quality of an employer's internal investigation is a key factor that can determine the outcome of a lawsuit or an EEOC investigation. This newsletter outlines essential responsibilities for both employers and employees and provides a guide for conducting effective internal investigations.

Defining Illegal Harassment and Employer Responsibilities

Illegal harassment is unwelcome conduct based on a protected class, such as race, gender, age, or religion. This conduct must be so severe or pervasive that it alters the terms and conditions of employment. To protect your company from legal liability, it is essential to have a robust anti-harassment and anti-retaliation policy in place.

Key employer responsibilities include:

• Having a Policy - If you don't have a written anti-harassment policy, create one immediately. If you do, ensure it reflects current laws and company structure. A good policy is one that is always followed.
• Complaint Procedures - Your policy should outline a clear complaint procedure, including who an employee should report to, such as a specific person in Human Resources or at the executive level. It is recommended to have at least two designated people and to be careful about designating a supervisor as the only option.
• Documentation - Document employee acknowledgment of the policy. Note that electronic signatures are acceptable. Review and redistribute policies periodically.
• Consensual Relationships - Be aware that consensual relationships can lead to employer and personal liability if they turn sour. Consider implementing a fraternization policy or "love contracts."

1. The Importance of the Investigation

When a complaint is made, a prompt, thorough, and fully documented investigation is crucial. The investigation should also involve taking appropriate interim action, such as reassignment or paid leave, in order to separate the parties. Be careful not to give the appearance that you are punishing the complainant.

2. Conducting Effective Interviews

Interviewing all parties is a critical step in a thorough investigation.

• Complainant's Interview - Be sympathetic but objective, and do not provide legal advice. Do not promise confidentiality but do promise no retaliation. Ask open-ended questions and gather specific facts, including dates, times, and exact words used. Direct the complainant to preserve everything and consider having them write or sign a statement.
• Witness Interviews - Explain the complaint in sufficient detail and focus on details and personal knowledge, not hearsay or feelings.
• Accused's Interview - Be strategic and objective. Cover every issue the complainant raised and find out specifically what the accused admits and denies.

3. Reminders

• Complaints by a resigning employee or a terminated employee should not be ignored just because the individual is no longer employed. The employee may have left but the accused might still be employed.

• An employee’s statement that “I don’t want you to do anything about this, but I just wanted you to know that…” does not relieve you of the obligation to investigate allegations of harassment.

• Employees do not have the right to “have their lawyer” involved in the investigation.

• Maintain your investigation notes in a separate file.

• Always provide a final response to the complaining employee even if that response is no evidence was found to support the allegations.

• Follow up with the complaining employee shortly after the investigation is concluded to ascertain if there are any additional matters to address.

4. Case Law Examples

The importance of a thorough investigation is underscored by specific case law examples:

• Wilcox v. Corrections Corp. of America (11th Circuit-2018) - The employer was held not liable because it promptly separated the accuser and harasser, investigated the claims, and terminated the harasser at the conclusion of the investigation.

• Minix v. Jeld-Wen, Inc. (11th Circuit-2007) - The company was held not liable despite a history of failing to act on similar allegations, because it conducted a "thorough and comprehensive investigation," which led to the harasser's resignation and demonstrated a "vigorous and systematic enforcement" of company policy.

• Matusick v. Erie Cnty. Water Authority (2nd Circuit-2014) - The Second Circuit affirmed a jury finding of liability for the employer, based on the "insufficiency" of a "tainted" investigation.

A thorough investigation will not always insulate an employer from possible liability but if it does not, it may limit the liability and potential damages. Finally, in certain circumstances it may be appropriate to utilize an outside third party to conduct the investigation, especially if the allegations involve numerous employees over a period of time or there is a history of complaints but lack of verification between the parties involved.

In case you missed it, we recently held a “Breakfast with Bradley” session on Harassment & Investigations: What Employers Need to Know Now. You can watch the replay here.