First of all, why investigate before you terminate? Well, when employees make a complaint, it’s really easy to believe them and to want to take swift action against the accused. But that is the wrong thing to do. Laws such as the Civil Rights
Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, Occupational Safety and Health
Act, Sarbanes-Oxley Act, and state and local nondiscrimination laws require that employers investigate complaints of harassment, discrimination, retaliation, safety violations, and ethical misconduct, and that they do so in a timely manner, which means right away. Additionally, investigations tend to reveal situations that do need to be corrected, and they can help the organization identify and resolve internal problems before they become big, giant problems. Investigations allow employers and HR to build trust among employees. Employees tend to have trust in employers and HR when they know that a fair, impartial, thorough investigation will be conducted when there is an accusation. And finally, investigations help lawyers defend employers if a lawsuit results from the accusation. Responsiveness to a complaint and an investigation not only helps obtain information and evidence, but it enhances the investigators, HR, and the employer’s credibility, given that every complaint has the potential to become a lawsuit. You should investigate every case, every complaint as if it is going to go to court, and as potentially disruptive as investigations can be, you’ve got to make them quickly. They’ve got to be prompt, thorough, and effective to ensure everyone’s protection.
So what did you investigate? Sexual harassment complaints. And I talked about sexual Harassment a little bit, but if you weren’t with us last week, it is verbal, visual, and physical conduct of a sexual nature that’s unwanted. And there are two types of sexual harassment. One is called quid pro quo, which means this for that. And it occurs when someone in a position of power states or implies that sexual favors are a job requirement of someone in a subordinate position. Then there’s hostile work environment. This is a form of sexual harassment that can be created by anyone in the workplace. Again, it’s conduct of a sexual nature that’s unwanted. But a hostile work environment can also be created because of behavior directed at someone or about someone, because of being in a protected class such as race, religion, national origin, age, et cetera. Discrimination comes in two forms: unequal or disparate treatment, which is treating people differently because of their protected class status or the perception. So, for example, giving favors to people of a certain race and not to other races. And then there’s unequal or disparate impact. We don’t mean to treat people differently. It
just ends up happening because of our policies or procedures. It’s really important that you know the protected classes
in your state. We have our federal protected classes, but then some states have more than Federal’s. And so you need to be sure you know what those are. Retaliation is when an employer, supervisor or coworker, or a third party takes any kind of adverse action against an employee for filing a complaint. Filing a complaint is considered to be a protected activity, which means that if somebody takes action against someone because of engaging in a protected activity, that’s illegal. Common types of workplace retaliation are firing, demoting, transferring to a less desirable location, get a performance review, withholding a race or promotion, limiting the number of hours worked, and even keeping employees from attending meetings or other events the business hosts. I read about a lawsuit where a woman filed a complaint and in her workplace, people took turns managing the reception area while meetings were in session. And so the employees would rotate managing the reception area while everybody else was in a meeting. Well, after this employee filed a complaint, she had to stay upfront in the reception area during every meeting and she was not allowed to come to the meetings. And so she filed a suit for retaliation. And the court found that, yes, that was retaliation. Now, you might say, I want to get out of a meeting. And so that’s a good way to do it. But the reason it was retaliation is that even though no tangible recourse, as far as nothing happened to pay or performance reviews or anything like that, the court found that the employer treated her differently after she made a complaint and that was retaliation. You also want to investigate employee misconduct, such as violating policies. And generally, that’s the focus of an investigation, is determining whether policies were violated, not necessarily whether somebody broke the law or not. So, for example, if there is an accusation of harassment, even though harassment is against the law, you want to determine if the employee violated the company’s anti-harassment policy. You don’t need to determine whether they violated the law. You just need to determine whether they violated the policy. So you want to stick to that. Now with employer misconduct, employers can violate their own policy as well. For example, someone in a very high-level position was just fired as CEO for a major company (and I’m thinking it was McDonald’s) because of violating the company policy against dating subordinates. And so employers have to follow their own policies, too. But sometimes investigations against employers do pertain to illegal behavior. And that’s what happened at Enron. At Enron, the accounting department was cooking the books. And so that’s illegal. And that’s what they were looking into. And then safety issues and hopefully you’ve got your own safety department that will investigate safety issues. But every once in a while, HR has to investigate safety issues, too, because they wear the same hat. And of course, you’re looking at whether someone violated any of your safety policies. But sometimes it does arrive to a legal action because of violating OSHA laws, as well.