Helpful Legal Information
Employer Investigations
All employers have a duty to investigate all claims of harassment, discrimination and/or 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 his or her supervisor, a different supervisor should be assigned. Many employers believe it is acceptable to maintain the status quo while an investigation is conducted, as if nothing happened unless or until it can be proven that something happened. 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 her schedule, move her workplace, put her on leave - even if it is not her choice. A federal case in California suggests that this is an inappropriate response. The victim should not be inconvenienced or penalized, even slightly, for her complaint of sexual harassment.
In-house investigations may be incomplete or inaccurate
An investigation of a sexual harassment complaint must be thorough, including 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 so as to get all the details in the event of a future lawsuit. Many times it is tape recorded or video-taped. But then little or no questioning is done of the harasser. The testimony of third-party witnesses is not obtained.
What to do if you are a victim
If you are a victim of harassment or discrimination, you should seek legal advice before allowing an employer to interview you and in particular record your interview.
An 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 his supervision to investigate the complaints. Obviously someone within the control or influence of the offending individual 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 subject 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 told. Meetings with the victim should be conducted in a confidential manner in a secluded setting.
If there is confirmation of harassment or discrimination
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 simply separate the perpetrator from the victim, although that needs to be done where practicable. The perpetrator must be shown that this behavior will not be tolerated. In some cases, this may mean he or she is fired.