EMPLOYERS REMINDED OF DUTY TO INVESTIGATE HARASSMENT CONCERNS
May 9, 2019
Employers face a number of challenges, as well as legal obligations, in managing their work environments. One of those obligations is the affirmative duty to investigate and remediate instances of harassment in the workplace. Specifically, this duty applies when employee harassment is both based on one of many protected characteristics under state or federal law (included sexual harassment, as well as harassment based for example race, ethnicity, disability, religious beliefs, etc.) and has the effect of materially altering the work environment.
Employers are responsible for protecting the work environment from instances of harassing conduct from employees’ coworkers. In addition, employers are responsible for the conduct of any employee who serves in a supervisory role when a supervisor’s conduct is directed at a subordinate employee. This responsibility, known as vicarious liability, means that, not only is it critical to train all supervisors to understand this responsibility, but it is also imperative to have in place comprehensive policies that both prohibit harassing conduct and set forth the investigative process used to enforce anti-harassment policies.
A good investigative process provides protections for the employer against claims of unlawful harassment both prophylactically – by providing a mechanism to identify and eliminate circumstances before they impact the work environment, and responsively, in the event of a claim against the employer – in the form of affirmative defenses available in the law.
Policy Necessities Relative to Harassment Complaints and Investigations
Effective harassment complaint and investigation policies, according to the Equal Employment Opportunity Commission (EEOC), are those that accomplish the following:
- Provide for accessible and easy to use complaint initiation. Employers must initiate investigations if the employer knows or has reason to be aware of possible prohibited harassment occurring in its work environment. Complaints must be investigated, whether they are made orally or in writing. Likewise, a complaint need not be made only by the employee reportedly the target of harassment in order to trigger the investigation obligation. Finally, complaint policies must provide an outlet that allows for the presentation of a complaint to someone other than the affected employee’s supervisor.
- Provide for a prompt investigative process. Employers must initiate an investigation as soon as management becomes aware of sufficient information to establish that an investigation is warranted. This does not mean sufficient information is known to establish the existence of prohibited harassing conduct, just that further investigation is needed to determine whether corrective action is necessary. Similarly, the investigation should be conducted in a manner calculated to reach conclusion timely in order to implement corrective action, if necessary, expeditiously.
- Assure an impartial investigative process. The individual conducting the investigation must be able to do so objectively. Use of a third-party investigator can be an effective way to provide impartiality, but at a minimum, the investigator must not be someone who reports to the accused or over whom the accused has some indirect authority. As an additional practical consideration, an investigator should be someone with background, training, and/or experience which makes them qualified to conduct an investigation.
- Allow for interim measures if necessary. In the event that a complaint includes serious allegations and potential ongoing harassment, the employer should consider temporary measures to protect the work environment and the parties involved during the investigation process. This typically takes the form of temporary administrative leave or reassignment of the accused, but should be done in a way that is not punitive, as no conclusions regarding the veracity of the allegations have yet been made.
In addition, the EEOC notes that whether an investigation is conducted, ought not be dependent on whether the affected employee wishes to pursue the matter. Rather, “[w]hile it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment”. See EEOC guidance, 915.002. This is a critical concept, and is often used in the context of employee complaints alleging a failure to properly investigate and mitigate hostile environments where evidence is present to establish that the employer (typically through a supervisor) knew or should have known that the offensive conduct had occurred or was occurring. Taking this EEOC guidance to its logical conclusion, an affirmative obligation to mitigate harassment in the workplace is not predicated on the presentation of a complaint, in any form, but rather is triggered upon the employer’s attainment of knowledge of potentially prohibited conduct.
When in Doubt, Investigate
The employer’s duty with respect to workplace harassment is to combat and remedy its existence. Once information comes to the knowledge of those with authority to act on behalf – and therefore incur liability on behalf – the employer, the prudent approach is to conduct an investigation into the circumstances and to determine the facts.
Conducting an investigation can take many forms and should always be tailored to the circumstances. This means that in some cases, an investigation may be extremely limited in scope, for example, if it is immediately clear that the concerns raised do not implicate a protected classification, but are rather more of the “personality conflict” variety, further investigation under the harassment policies is not necessary. Other interventions may be pursued, but clearing the application of the legal obligations to remediate under the harassment policies first is nonetheless recommended.
Conversely, the failure to investigate may be used against the employer in a claim arising out of the specific circumstances or future circumstances. The U.S. Supreme Court’s companion decisions in Faragher v City of Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) provided employers with a modicum of protection from liability in this area through employer policies provided that, among other criteria, the employer takes reasonable steps to enforce its anti-harassment policies. This requires ensuring that anti-harassment policies are in place, that employees are informed of the policies, and that the employer has a history of enforcing the policies (or conversely, a complainant is not in a position to illustrate that the company does not in practice enforce its policies). Enforcement of policy necessarily relates to the investigation of known circumstances implicating potential offending behavior and, if verified to have occurred or to be occurring, its remediation. If those circumstances are present, the organization can significantly reduce its exposure to liability resulting from hostile work environment claims due to harassment.
Conducting the Investigation and Determining Appropriate Remedial Action
Strategies and tutorials on how to conduct effective investigations are beyond the scope of this article. However, the purpose of this discussion does include both a reminder to employers about the importance of conducting investigations as well as the necessity of investing in the resources to be able to conduct effective investigations. This means either working with outside investigators, such as your legal counsel, or in training employees to develop or improve capabilities in this regard.
The age old adage “an ounce of prevention is worth a pound of cure” is no more apropos than in this context. Creating a culture of intolerance for harassment starts with consistently investigating and eliminating instances of problematic conduct at its earliest stages. Developing a reputation as an organization that permits harassment, in any form, sexual harassment included, can be a very difficult reputation to reverse. It can also be a very costly culture to defend.
Conducting workplace investigations can be disruptive, time consuming, even costly. Failing to investigate allegations of employee harassment can be all of those things as well, and potentially, on a far greater scale. Developing a culture that policies which prohibit certain conduct in the workplace will be taken seriously creates tangible long term benefits to the organization. Finally, as a parting piece of advice, remember that fact is always stranger than fiction and, as such, one should avoid the pitfall of not investigating a situation based on a preconceived or reflexive conclusion regarding the circumstance. Being able to support decisions and action or inaction based on documented investigatory measures is always the issue.
For questions regarding this article, please contact the author, Attorney Geoffrey A. Lacy (email: email@example.com; telephone: 844.833.0824), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
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