This post is the fourth in a four-part series that provides guidance and strategies to HR professionals, managers and business owners on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.
Now that you have finished your fact-finding, you must make some conclusions. The first question is whether some form of misconduct actually occurred. If it did, you need to decide what type of corrective action is warranted, taking into account what your company has done in similar situations. Finally, you should take steps to minimize your organization’s risk of retaliation complaints by the complaining employee.
DID MISCONDUCT ACTUALLY OCCUR?
In some investigations, the answer may be obvious. Perhaps the accused employee admitted the conduct or the evidence is so strong and corroborated that you can conclude it occurred. If so, you can skip to the next section.
In other cases, however, you may have a “he said-she said” situation, or one where it is hard to tell exactly what happened. When you are assessing the credibility of conflicting witnesses, consider these factors:
- Has the complaining employee complained before?
- Has the accused employee has been accused of similar conduct before?
- Whose story was more specific and detailed (more credible)…versus vague and evasive (less credible)?
- Whose story was solid and consistent each time it was repeated…and whose story changed with different iterations?
- Whose body language indicated truthfulness, with direct eye contact, a confident posture and minimal fidgeting?
- How quickly did the employee come forward after the conduct occurred? Was it reported right away, or is the timing of the complaint suspicious (right before a termination meeting or anticipated poor performance review)?
- How inherently plausible or implausible are the allegations themselves?
- Are there any documents, emails, or text messages that support or contradict the allegations or defenses?
After weighing all of these factors, you still may not be able to “break the tie” in order to make a definitive conclusion that any violation occurred. In that case, you should still have a serious discussion with the accused employee, review your anti-harassment policy with him or her, and emphasize that he or she must not retaliate against the complaining employee. Be sure to document this conversation.
WHAT CORRECTIVE ACTION IS APPROPRIATE?
If you conclude that misconduct occurred which violates your company’s policies, you must decide what level of corrective action is proper. The U.S. Supreme Court mandates that the corrective action be effective to end the harassment. Some employers have a “zero tolerance” harassment policy, which calls for termination for any violation. This kind of policy makes the discipline decision quite simple, although as a note of caution, it can be difficult to enforce in a unionized workforce.
Other employers take a more graduated approach and review many different factors. Among those that should be considered:
- How serious was the offense? Was it a single text message, or unwelcome physical contact? The more serious the offense, the more serious the discipline should be.
- What has your company done in similar violations? For internal fairness reasons as well as legal ones, your discipline in this situation should be the same as in similar ones. If you impose more harsh discipline against an older worker, one with a disability, or of a different race, for example, that person may then challenge their discipline by bringing an EEO claim against you.
- How long has the employee been employed at the company and what is his/her performance record?
- Does the employee have any prior discipline? And specifically, has the employee ever been disciplined for violating your harassment policy?
- Did the employee receive your harassment policy and go through harassment training? This is hopefully always a “yes” answer. Without either one of these critical defenses to a harassment lawsuit, your risk of liability vis-à-vis the complaining employee is significantly increased. It may also factor into what level of discipline is proper for the offending employee.
- Are there any “mitigating” or “aggravating” factors? For example, did you conclude definitively that the accused employee was untruthful during the investigation? Or did the employee curse and become belligerent during the interview? If so, these should be factored in and could increase the penalty imposed.
Who should make the decision? In deciding what discipline to impose, it is important to use a consensus approach among at least two decision-makers. This is to avoid allegations that a particular person was biased or unfair. In a larger organization, it may be the employee’s manager, director and a Human Resources professional. In a smaller company, it could be the business owner and the employee’s manager. These individuals should review the investigation results and reach a joint decision.
What form of discipline should be imposed? In many cases, termination may be the only appropriate response. For some offenses, it may be proper to suspend the employee without pay and/or place them on a last chance “final” warning. For less serious, first-time, isolated offenses, it may be proper to provide a written warning. In any situation where the employee will remain employed, you should require him/her to sign off on your harassment policy and go through harassment re-training. (Hopefully they have already been through your company’s training program at least once.)
You can also build “barriers” within your organization to reduce contact with the complaining employee. This also helps reduce your risk of retaliation (see below). For example, if the offending employee was a supervisor, you may decide to remove his/her supervisory status and transfer the individual to a separate department from the complaining employee.
MINIMIZING RETALIATION RISKS
Once an employee complains about harassment, if he or she then suffers an “adverse employment action” (demotion, termination, salary reduction, undesirable schedule, etc.) because of the complaint, they can assert a retaliation claim. This is true even if your investigation concluded that no harassment occurred. Taking steps to protect your company from a retaliation claim is an important part of handling every investigation.
1. Follow Up With the Complaining Employee
It is considered good business practice and common “respect” to circle back with the complaining employee once the investigation is completed. It does not need to be a long conversation. Thank the employee for bringing his/her concerns forward. Tell him/her that a thorough investigation was conducted and has been concluded. Remind the employee that retaliation against him/her is prohibited, and ask the employee to promptly report any further incidents to you, his/her manager, etc. Also:
- If the harassment allegations were not substantiated, politely let the employee know that and state “the Company considers this matter concluded.”
- If the harassment allegations were substantiated and corrective action was taken, you must be careful about (i) the privacy interests of the accused employee and (ii) making admissions against the interests of the Company. It is not advisable to tell the employee the specific conclusions or corrective action. Instead, assure the employee generally that “the matter has been handled and appropriate action taken, but as a matter of policy we cannot disclose the specifics to you.”
It is also a good idea to follow-up your meeting with a letter to the employee recapping your meeting, and to periodically check in with the employee.
2. Remind Key Employees of Your No Retaliation Policy
The complaining employee’s supervisor, manager, and anyone else who may make decisions about him/her should be reminded about the company’s no retaliation policy. If they have any question going forward with what they can and cannot do, remind them to immediately get advice from Human Resources or higher-ups in your organization before taking action. You should also be sure to prevent or minimize contact between the complaining employee and the alleged offender.
3. Carefully Review Adverse Decisions
Does “no retaliation” mean you can never discipline the complaining employee? Or criticize their performance? Or change their schedule? No, but it means their complaint cannot be taken into account. It also means you have to be extra careful to ensure there are solid facts to support your actions.
If the complaining employee’s performance review is due, for example, and the manager has scored him/her much lower than in prior reviews, there needs to be solid reasons, examples, and documentation to justify the decreased rating. If the complaining employee is accused of violating company policy, there needs to be a thorough and impartial investigation and solid justification for discipline before taking any action against him/her.
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If you have any questions or need assistance with an internal investigation, you should consult with experienced employment counsel.