You might be tempted to think that after several years of the #MeToo and #TimesUp movement, with all of the new laws and regulations, seminars, training sessions and (ahem) magazine articles in this and other publications, that employers would not keep making the same mistakes. Unfortunately, that hasn’t turned out to be the case.
One area that is a particular sore point is how employers handle the complaints of employees who believe they were harassed. “An internal harassment complaint is a critical moment for an employer,” stresses attorney Nicholas M. Reiter of the law firm of Venable LLP. “The complaint presents an allegation of wrongdoing, which may lead to costly and time-consuming litigation.”
He adds it is at this critical juncture that how the employer chooses to handle the complaint can impact workplace morale, the likelihood of a lawsuit or an administrative charge, and the defenses available to the employer, among other things.
To help current employers navigate this process without the minimum danger of a mishap (we can only hope), Reiter lays out what he says are the five common mistakes most employers continue to make and how to avoid them.
Meeting with both 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,” Reiter notes dryly. That type of forced meeting is one of the most common allegations that finds its way into a complaint that later becomes part of a lawsuit.
“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,” he points out “Instead, employers should first interview the complainant and the accused separately to obtain their versions of events.”
Then, once the investigation is complete, the employer might consider whether a face-to-face meeting between the complainant and the accused is appropriate. But even if the employer still wants a meeting between the involved parties, it is a better idea to ask whether the complainant will consent to meeting with the accused, Reiter says. “If not, there is usually very little upside to the meeting.”
Forgetting to interview all potentially relevant witnesses. While this is a simple thing to do, and yet many employers still fail to check this box.
Reiter explains that all an employer needs to 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, he says.
The failure to interview all potentially relevant witnesses can cause a number of problems, including the loss of evidence or even result in an allegation that the employer did not conduct a good-faith investigation. In addition, Reiter observes, 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.
Forgetting to preserve all potentially relevant information (not just emails). Most employers are aware that when an employee alleges illegal harassment, the employer has a legal duty to preserve relevant information – but some of them 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, including security camera footage, text messages and messages sent via internal communication software (such as messages on Jabber, Slack or Google Hangouts platforms),” according to Reiter.
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.
In their lawsuits, it is not unusual to find that plaintiffs charging sexual harassment also allege that they complained internally at their workplace, only to never hear from their employer again. That lack of communication often creates uncertainty for the employee, which can spur them to commence litigation, Reiter warns.
“It can also lend credence to the plaintiff’s allegation that the employer did not take the internal complaint seriously,” he says. “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.”
Failing to ask the complainants what their objective is. If an internal harassment complaint is substantiated, an employer should start a dialogue with the complainant about what she (or he in some cases) wants the employer to do about it.
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,” Reiter explains. “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, he admits, but while understandable, he sees this is a glass-is-half-empty approach. A good alternative view would be to consider internal complaints as opportunities to address workplace harassment issues in-house instead of, say, inside a courtroom.
“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,” Reiter says. “As always, conferring with experienced employment counsel goes hand in hand with best practices for investigating internal harassment complaints.”