Many laws in the area of workplace relations require employers to perform investigations, which fulfill their various obligations under the laws. The general duty of any employer — who either is or should be aware of any type of discrimination, harassment, threat, retaliation, or safety problem — is to take immediate and effective corrective action to solve the problem. To know whether an investigation is even necessary, the employer must preemptively collect and examine the facts. Employers that fail to investigate such issues are at serious risk of losing claims or lawsuits brought by the employees or former employees affected by the asserted problem.

Employers Should Distribute — and Train All Staff Concerning — Clearly Defined Anti-Discrimination Policies

All employers should create, deliver, train, and enforce an anti-discrimination and anti-retaliation policy to their employees. To be maximally effective, these policies should contain a clearly defined complaint procedure for employees who wish to file a complaint of harassment, discrimination, hostile work environment, and/or retaliation.  Some employers choose to ignore the importance of promptly investigating these types of complaints and taking quick and appropriate remedial action.  Employee complaints must be effectively investigated and quickly resolved.

Employers Should Define & Adhere to Civil Rights Policies for Employees

The best way to combat unfair workplace activities is to develop an environment where discrimination, harassment, and retaliation are not tolerated, and where employees are able to raise concerns immediately with management rather than enduring serious problems. By defining and adhering to civil rights policies and procedures, employers reasonably may hope to achieve declining workplace complaints, as employees and employers become aware of ability to get along and instill and maintain proper corporate values in the workplace.

Privacy Rights & Complaint Investigation

Naturally, each type of problem demands its own types of investigation. However, certain common requirements run through each type of investigation situation. The investigator:

• Must be knowledgeable about state and federal employment laws
• Must respect an employee’s right to privacy
• Must conduct a thorough investigation, but without letting it take too long
• Must be unbiased

What a Proper Investigation Should Look Like

The federal Equal Employment Opportunity Commission (the Agency that accepts, investigates, and sometimes litigates sexual harassment claims) has interpreted federal case law as requiring:

• The employer must have a mechanism for a prompt, thorough, and impartial investigation into alleged harassment.
• As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. If it is, it should be launched immediately.
• The person conducting the investigation should objectively gather and consider the relevant facts.
• The accused harasser should not have supervisory authority over the person doing the investigation and should not have any direct or indirect control over the investigation.
• The person conducting the investigation should be well trained for interviewing witnesses and evaluating credibility.
• If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility.
• After all the relevant evidence is obtained, interviews are finished, and credibility issues are resolved, management should decide whether discrimination, harassment, or retaliation has occurred. That determination could be made by the investigator or by a management official who reviews the investigator’s report.
• It may be difficult to reach a determination because of direct contradictions between the parties and a lack of documentary or eye-witness corroboration. In such cases, a credibility assessment may be the basis for a determination.
• The parties should be informed of the determination.

In 2017 the EEOC published for public comment suggested enforcement guidance on sexual harassment in the workplace. The guidance hasn’t been made official, but it suggests,

• The harassment complaint system should include multiple ways in which an employee could make a complaint.
• The identity of those reporting discrimination, the alleged victims, witnesses, and the alleged harassers must be kept confidential as much as possible and names only divulged on a “need to know” basis.
• Employees should be encouraged to respond to questions and participate in investigations.
• Information obtained during an investigation should be kept confidential.
• Investigations should be neutral, prompt, thorough, and impartial.
• Alleged harassers should not be prematurely presumed guilty or prematurely disciplined for harassment.
• Investigators should be well-trained, objective, and neutral. They should have the authority, independence, and resources to receive, investigate, and resolve complaints appropriately and timely.
• The employer should take immediate and proportionate corrective action if it determines that illegal conduct has occurred.

In a civil lawsuit, the plaintiff has the burden of proving that it’s more likely than not the defendant engaged in sexual harassment, but an internal sexual harassment complaint made with an employer isn’t a lawsuit.

Given the EEOC Guidance, an employer shouldn’t automatically presume the accused engaged in the charged harassment. On the other hand, an investigation wouldn’t be legitimate if the burden to prove harassment was too high.  It’s up to the employer to decide where it should be as between those extremes.

Should You File an Internal Complaint?

If there’s a workforce complaint process and you have a complaint, consider giving it a try. Discuss this decision with your employment lawyer.  This is a key piece of strategy for you, and you want to make the best decision possible.  “Measure twice, cut once.” 

There are limited circumstances where avoiding the process would be understandable.

• The alleged harasser would be the investigator.
• You have credible evidence past investigations were not performed appropriately.
• Earlier investigations lead to retaliation against those making complaints.
• Must quickly investigate the facts and report to management.

Some Final Considerations

In essence, investigations are a powerful tool for employers to gather the facts, evaluate fault, and make informed decisions about complicated matters subject to wide variations in belief.

In some situations, the employee will want to stay anonymous. In other cases, an employee may file a complaint of harassment and then ask the employer not to bother to investigate since they don’t see it as a huge deal.  In such instances, the employer still has the legal obligation to look at the issue and, if appropriate, resolve the conflict. The employer can inform the alleged victim that it will make every effort to keep the complaint confidential, but that it cannot promise to do so, since it has the legal responsibility to fully investigate the workplace complaint and partial to complete disclosure of events and names may be unavoidable. 

Given the confidential nature of the investigative information, it is commonly suggested that your employer keep written accounts of these types of investigations in a separate, private file, other than your personnel file. However, keep in mind that some states require employers to keep certain documentation relating to an employee’s discipline, probation, or termination in their personnel file. Therefore, in some circumstances, it will be important to maintain the correct records that set forth the investigation outcome and what (if any) corrective action will be taken against any of the involved employees.

Conclusion

If you believe you’ve been subjected to unlawful discrimination or retaliation in the workplace, you should contact the Kingston Law Group at our Central Jersey offices.  We offer a reduced fee initial consultation.  We will sit with you face to face, listening to your facts, explaining the law, and helping you determine your best options going forward. We want you to achieve the best social and economic justice possible under your circumstances.  Workplace discrimination cases are driven by the facts and how the law is interpreted in consideration of those facts. Let’s consider whether you should file an internal complaint or a law suit, and, if you do file either one, how our office can help you reach your goals and protect your rights.  Call today.  You will be glad you did.