Investigating Harassment, Discrimination, and Retaliation

Aug 25, 2009

Employers have a duty to investigate all claims of harassment, discrimination, and retaliation. An employer's failure to investigate promptly, adequately, and confidentially may subject it to separate liability under federal and state law.

When an incident happens

An investigation must be done promptly. In some cases, this means within hours. At the least, while the matter is being investigated, the harasser should be separated from the victim of harassment. If the harasser is the victim's supervisor, a different person should be assigned to supervise the victim. Many employers believe it is acceptable to maintain the status quo while an investigation is being conducted. The victim is left to continue working with the harasser, a situation now even more unpleasant given the harasser's knowledge of the complaint. Another common response is to move the victim, not the harasser; to change the victim's schedule, move the victim's workplace, put the victim on leave - even if it is not the victim's choice. A federal case in California suggests that this is an inappropriate response. The victim should not be inconvenienced or penalized, even slightly, for his or her complaint of sexual harassment.

In-house investigations may be incomplete or inaccurate

An investigation of a sexual harassment complaint must be thorough and include, in most cases, interviews of the victim, the harasser, and other witnesses. Many employers, if they do an investigation at all, simply go through the motions. They take down the victim's story - usually to get all the details in the event of a future lawsuit. Often, the interview is tape recorded or video-taped. However, the harasser receives little or no questioning, and the testimony of third-party witnesses is not obtained.

What to do if you are a victim

If you are a victim of harassment, discrimination, or retaliation, you should seek legal advice before allowing an employer to interview you, especially if the interview will be tape-recorded or video-taped. The investigation must be impartial, done by an objective party, not connected to the conduct in question. Many employers will simply use the harasser's supervisor or someone under the harasser's supervision to investigate complaints. Obviously, someone within the control or influence of the alleged harasser is not sufficiently impartial. Likewise, an impartial investigation cannot be done by someone who supervises the harasser and may look bad if the harassment is confirmed to have occurred by the investigation. An investigation should be conducted by someone from outside the company, or at least a separate department of the company.

What the employer is required to do

An employer must do whatever is possible to protect the victim's confidentiality. While there is a duty to investigate, an employer should not treat the complaint like it's the latest gossip in the workplace. The matter should be treated seriously, but discreetly. Persons who have no reason to know the details of the allegations should not be informed. Meetings with the victim should be conducted in a confidential manner in a secluded setting.

Confirmation of harassment, discrimination, or retaliation

If the investigation confirms that harassment or discrimination did occur, the employer must take appropriate disciplinary action against the perpetrator. It is not enough to separate the harasser from the victim, although that needs to be done when practicable. The harasser must be shown that this behavior will not be tolerated. In some cases, this may mean that the harasser is fired.

Legal assistance

If you believe you have taken all the necessary steps and are still unsatisfied with the result, you may need to seek legal counsel about the feasibility of filing a lawsuit. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights and permit recovery of past lost wages and benefits, future wage loss, emotional distress damages, attorney fees and possibly punitive damages, if a violation has been found.