An internal harassment complaint is a critical moment for an employer. The complaint presents an allegation of wrongdoing, which may lead to costly and time-consuming litigation. How the employer handles the complaint can affect workplace morale, the likelihood of a lawsuit or an administrative charge, and the defenses available to the employer, among other things.
Here are five common mistakes employers still make when they receive an internal harassment complaint and how your organization can avoid the same slip-ups:
1. Meeting with the Complainant and the Accused Together
Too often, an employer thinks they can mediate a dispute by simply getting the complainant and the accused in a room together to hash out their differences. This is rarely a good way to begin an internal investigation. When an employee comes forward to complain about being harassed in the workplace, he or she very likely does not want to be stuck in a room with the alleged harasser. Instead, employers should first interview the complainant and the accused separately to obtain their versions of events. Then, once the investigation is complete, consider whether a face-to-face meeting between the complainant and the accused is appropriate. If the employer still wants a meeting between the involved parties, it is a good idea to ask whether the complainant will consent to meeting with the accused. If not, there is usually very little upside to the meeting. That type of forced meeting is one of the most common allegations that finds its way into a complaint as part of a lawsuit.
2. Forgetting to Interview All Potentially Relevant Witnesses
This is a simple thing to do, and yet many employers still fail to check this box. All an employer must do to avoid this mistake is ask interviewees one simple question: "Are you aware of anyone else who may have observed any of the events we have discussed today?" That's it. As long as the employer interviews all identified witnesses, that should cover the organization. The failure to interview all potentially relevant witnesses can cause problems, including the loss of evidence or an allegation that the employer did not conduct a good-faith investigation. And the failure to conduct a good-faith investigation may deprive the employer of the benefit of the "business judgment rule," under which a court will often defer to an employer's determination regarding an internal complaint.
3. Forgetting to Preserve All Potentially Relevant Information (Not Just Emails)
Most employers know that when an employee alleges illegal harassment, the employer has a duty to preserve relevant information. But some employers forget that this obligation extends to more than just emails and personnel files. Savvy employers will go a couple steps further by quickly preserving other buckets of potentially relevant information, such as security camera footage, text messages, and messages sent via internal communication software (such as messages on Jabber, Slack, or Google Hangouts platforms).
4. Failing to Inform the Complainant and the Accused of the Outcome
This is another easy task that employers often forget to perform. Regardless of the outcome of the investigation, the employer should inform the complainant and the accused of the employer's determination. Many plaintiffs allege that they complained internally to their employer, only to never hear from their employer again. That lack of communication often causes uncertainty for the employee, which can spur them to commence litigation. It can also lend credence to the plaintiff's allegation that the employer did not take the internal complaint seriously. Even if the employer determines that the complainant's allegations are unsubstantiated, it is almost always a good idea to communicate the result of the investigation to the complainant.
5. Failing to Ask the Complainant Their Objective
If an internal harassment complaint is substantiated, an employer should start a dialogue about what the complainant wants done. For example, does the complainant want his or her reporting structure changed? If the accused is going to remain employed, might the complainant agree to be transferred to another department within the organization? Or is this a situation where the accused will be transferred, suspended, or separated from employment because of the misconduct? An employer need not abandon its rights to control the ultimate decision, but bringing the complainant into the conversation can often help the complainant feel that their allegations have been taken seriously. The importance of that sentiment cannot be overstated. It is often one of the most important factors for an employee who is considering whether to file a lawsuit or administrative charge.
Many employers groan when they learn of a new internal harassment complaint. But that's a glass-is-half-empty approach. An alternative view is to consider internal complaints as opportunities to address workplace harassment issues in-house instead of, say, inside a court room. If employers take their employees' internal complaints seriously and avoid the five common mistakes above, they should find themselves in the best position to minimize the risks of workplace harassment. As always, conferring with experienced employment counsel goes hand in hand with best practices for investigating internal harassment complaints.