February 2024 – Protected Groups / Complaints / Investigations

It’s one of the most dreaded parts of running a business…you overhear someone tell a discriminatory joke or an employee tells you they have been the victim of harassing behavior. What do you do?

It’s important to take the situation seriously, investigate promptly and thoroughly, and take impactful corrective action. If you ignore the complaint or allow the behavior to continue unchecked, one grievance can lead to the workplace becoming a hostile work environment, thereby exposing the whole company to additional liability while possibly increasing turnover and generating bad word-of-mouth.?

While all employees deserve to feel comfortable at work, if any impacted employee belongs to one or more protected groups, the company’s exposure to a negative legal outcome and potential damages increases even more.?

Background – Protected characteristics or groups:

Federal, state, and local laws define the characteristics or groups which are protected. Employees who fall into any of these groups have the protections of the laws which define them. Characteristics protected under federal law include race, religion, age (40 or older), national origin, color, gender (including gender identity), sex (including pregnancy and sexual orientation), veteran status, genetic information, and disabilities. Some states, counties, and cities have passed laws which expand protections to other groups such as natural hair and protective hairstyles; being a victim of domestic violence, sexual assault, or crime; use of sick time or medical leave; or familial or marital status.?

What does that mean? If an employee who falls into one or more protected groups files a complaint of discrimination, harassment, or sexual harassment, there may be an investigation by the regulatory agency which could result in penalties such as fines; back and/or front pay; compensatory, punitive, and liquidated damages; and attorneys’ fees and legal costs. In addition, employees who file a good-faith claim of or participate in an investigation into a complaint of discrimination, harassment, or sexual harassment are protected from retaliation.?

Create a safe workplace for your employees:?

Employers must provide a safe and healthy workplace for all employees. Part of that is to create a space where they are not harassed and can bring concerns to you for fair investigation without reprisal. Some good practices to that include:

• Establish clear policies and practices prohibiting discrimination, harassment, sexual harassment, and retaliation. Define protected groups and prohibited behavior such as quid pro quo and hostile work environment. Include these policies in your handbook, having employees acknowledge their receipt and understanding. Update regularly.
• Train employees on acceptable behavior in the workplace and with co-workers. Train supervisors on being consistent in their duties, handling unacceptable behavior, and understanding that the vicarious liability of their actions on the company mean they will be held to a higher standard.
• Take any complaint seriously no matter how minor. The aggrieved employee may not be the direct recipient of the unacceptable behavior, but, rather, they could be a witness or someone otherwise impacted by the behavior.? And what is funny or innocuous to one person could be offensive to another.
• Investigate thoroughly and quickly, putting other tasks on hold until it is resolved if needed. Protect the identity of the employee and participants as much as possible to reduce retaliation concerns. Take proper action based on what you discover and follow up with the accused and accuser to close the loop.?

• Be consistent in your actions regardless of the person or role of the accuser or the accused. If the person is entry-level or upper management, a new hire or has been there 20 years, all complaints are to be taken seriously even if the specifics change from case-to-case. If a leader is accused of inappropriate behavior, bring in an outside consultant for an unbiased investigation.

• Follow a similar process if the accused is a third-party such as a delivery person or an employee of a client. You may not be able to take disciplinary action against the accused, but you can take steps (i.e., reassigning the employee or terminating the relationship with the client) to protect your employee if needed.
• Never retaliate or allow others to retaliate. Retaliation claims should be more concerning as they are usually easier to prove and therefore more likely to be pursued in a legal setting.

Tips for investigating an internal complaint:

Having an employee file a complaint can be daunting since it is hopefully not something that happens often in your company. Whether the complaint is about a careless comment, offensive joke, or inappropriate touching, you should follow a clear, consistent process, documenting throughout. While not a comprehensive how-to, here are some important tips to keep in mind while investigating:

• Protect employee privacy but do not promise confidentiality: If you learn about an incident, you need to investigate it. But try to keep conversations as general as possible to protect the privacy of the employees who complain or participate in the investigation to help shield them from retaliation. And once you’re done, respect the privacy of the accused employee by not sharing the actions you take as that is part of their confidential employee record.
• Document everything: Ask the accuser, accused, and witnesses to follow-up their interviews with written statements. Whether they do or don’t, be sure you thoroughly document all of the interviews, the outcome, and your thought process so you can review everything in the future if needed to respond to a complaint.
• Don’t unintentionally punish the employee: While a natural reaction may be to remove the employee from an uncomfortable situation, the accused may not want that. Instead, ask the employee how they would feel most comfortable during the investigation. You can give them options (i.e., stay at home with pay, work at another location with similar conditions and duties, work their usual job, or remove the accused temporarily). Understand that anything viewed by the employee as a negative employment action may be seen as retaliation.
• Be okay with only knowing part of the story: There are multiple sides to every story and the truth lies somewhere in the middle. After you talk with all parties, assess what you learned with other factors about those employees – seniority, performance, previous complaints, etc. – and then use that to balance all of the information you have. After reviewing everything, determine what most likely happened and then determine the best course of action.?
• Termination is not your only option: After investigating, you feel the accused did something wrong. You may be right to consider terminating them. But if the accused told a joke or used a term that they did not know was offensive, then perhaps a written warning and sensitivity training is more appropriate.?

Steps to protect the company:

Supreme Court decisions and other court rulings have outlined ways a company can help insulate itself from exposure to maximum damages. Often referred to as an “affirmative defense,” these actions include (this list may not be exhaustive):

• Draft, maintain, and publish comprehensive, compliant policies and include acceptable reporting procedures.?
• Train employees and supervisors regularly in their protections and responsibilities.
• Make it easy for an employee to file a complaint by giving them multiple methods and people to contact to start the process.
• Investigate all complaints thoroughly and promptly and then take appropriate action.?

One final thought:

Minimizing your exposure involves proactively implementing effective policies and procedures, reinforcing that is the expectation and culture of the company, and quickly taking mitigating action if/when it occurs. If any aspect goes unchecked, one minor issue could grow into a major one.?

While a filed complaint does not automatically mean paying out damages, it does require time, money, and focus away from core business to respond and defend your case. And, even if a regulatory agency does not pursue the case, the employee may still be able to file a civil lawsuit to recover damages.

How we can help:

Our HR Support Plan includes handbook work which allows your policies to stay up-to-date, as well as unlimited ad-hoc compliance support if you want to discuss a situation with a neutral party to get advice on how to proceed or think of options for corrective action.

Paige McAllister, SPHR, SHRM-SCP, Vice President for Compliance – The Workplace Advisors, Inc.