Workplace investigations have always been a key part of the human resources function and employment law compliance. But the need for such investigations – and the consequence of conducting them poorly – have grown exponentially in the #MeToo era. Our friends from Sanders Warren Russell & Scheer LLP stopped by this summer to give local HR professionals a refresher course. Tyler Hibler and Nickolas Templin provided practical insight for handling workplace investigations and dealing with an ever-changing world, where expectations for proper handling are heightened.
Tyler and Nick reminded us that employment law follows culture. And the recent news about sexual harassment complaints has shattered stereotypes about likely perpetrators and victims. They shared these stats:
- 45 percent of employed women say they have been sexually harassed at work.
- 67 percent of Americans believe sexual harassment happens in most or almost all workplaces.
- 62 percent of men and 71 percent of women say workplace harassment is widespread.
Discrimination is at the root
First, it’s important to understand the meaning of discrimination. Here’s the official definition: “Unfavorable or unfair treatment of a person or class of people in comparison with others who are not members of the same protected class.” Those classes include race, color, religion, national origin, ancestry, sex, disability and age (40 through 69).
Discriminatory practices can include:
- Hiring and firing
- Compensation assignment or classification of employees
- Transfer, promotion, layoff or recall testing
- Use of company facilities
- Training and apprenticeship programs
- Fringe benefits
- Job advertisements
Employer responsibility extends beyond employees and the workplace
The scope of responsibility for protecting employees from harassment extends further than you might think. Employers can be held liable when they don’t take action if they know or should have known about harassment by a contractor, vendor or supplier, for example.
Harassment that takes place outside the workplace also can affect the employer, especially at sponsored events, like the classic holiday party. But even behavior at non-sponsored events can filter back into the workplace. Say one employee harasses another at a casual happy hour. If the harasser is a member of management and the victim then perceives he or she is being treated differently in the workplace, the employer is at risk. Private social media and text exchanges also can affect the employer if the recipient subsequently feels discriminated against in the workplace.
Sexual harassment defined broadly
Tyler and Nick reminded us that the courts have interpreted sexual harassment broadly, as well. Here’s the definition:
Unwanted sexual advances; requests for sexual favors; and all other verbal or physical conduct of a sexual nature, especially where:
- Submission to such conduct is made either explicitly or implicitly a term or condition of employment;
- Submission to or rejection of such conduct is used as the basis for decision affecting an individual’s employment; or
- Such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.
Preempting workplace harassment litigation
Their extensive experience in reviewing these cases helps Tyler and Nick identify the practices that are successful.
Establish a strong equal employment opportunity policy: Good practices come out of good policies, said the attorneys. Make sure to document your policy and communicate it frequently and consistently. Post it in locations employees frequent, and train your managers on it. Also be sure to review and update your policy regularly.
Create a specific sexual harassment policy: Make sure both employees and managers have clear and actionable directions on how to report grievances and how the company expects them to be handled. Be careful about using the supervisor as the only avenue for reporting. What happens when the supervisor is the harasser? A little tip: Don’t make one person – or one person’s email address – the only destination for complaints. What happens if that person is out for a vacation or leaves the organization?
Document and communicate the complaint procedure: Include the step-by-step process for investigating and responding. And follow it! Doing so will greatly decrease the likelihood your case will be litigated. In the vast majority of litigated issues, employees say they complained and were not taken seriously or nothing was done.
Investigate promptly: Be sure to follow your process for each and every complaint – whether reported or simply observed. And follow up as quickly as possible. Also be sure to inform the parties involved about how the complaint was resolved.
Always include HR: Even when a manager identifies and stops a harassing incident in its tracks, the manager should document the incident and send it to HR for review. You never know when it will happen again, and you’ll wish you had documentation of the first incident.
Take interim corrective action: To prevent further misconduct, consider a temporary transfer or leave of absence with pay while you are investigating.
Create written reports carefully: All the information you receive could be “discoverable” for use during litigation. So carefully written documentation is critical. Try to record facts only. Don’t forget to document the conclusion you reached, how you reached it and the actions you’re taking.
Avoid retaliation: Retaliation must not be allowed under any circumstances or against anyone involved in or witnessing the harassment. Communicate this clearly and frequently.
Keep it confidential: Keep your work confidential as much as possible, involving only those who have a need to know. And ask those involved to keep it quiet, too. The EEOC has made it clear that you cannot forbid employees from discussing the situation with others. But you can ASK them very nicely to keep it to themselves to avoid defamation of character.
A note about representation
Employees may ask to have another employee or their attorney present throughout the process to be a witness or represent them. There is no specific right to such representation, but you can allow it, and it might be a good idea.
Protecting your company
You can help avoid discrimination and harassment and strengthen your case against liability by ensuring your policies are up to date and your employees are well informed. In spite of your best efforts, legal troubles can arise. Make sure your Employment Practice Liability Insurance (EPLI) policy is adequate and you know a good employment practice attorney. While you may never need either, they provide a necessary layer of protection.
By Pat Murphy, President, Commercial Division, The Miller Group