When an employee complains about harassment or discrimination, taking their complaints seriously is imperative. As the employer, you must make it clear to all employees that such conduct is not tolerated. If you knew, or should have known, about the harassment and did nothing, you may be held liable.
That means improper handling of such complaints can have significant consequences. You could end up with the federal government investigating the complaint. You might face substantial legal fees and settlements.
Handle the complaint correctly, and you may avoid some worst-case scenarios. You might improve employer-employee relations all around.
What Constitutes Harassment and Discrimination?
The U.S. Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome conduct based on:
Age (40 and up)
Sex – including pregnancy
Harassment is considered illegal under two types of circumstances.
- The first involves the employee having to put up with the insulting behavior in order to continue working in their position.
- The second occurs when the conduct is serious enough that it creates a workplace environment that is “intimidating, hostile or abusive.”
In fact, it is not only the harassment victim who may complain about the situation. Those witnessing the conduct who feel offended by it can file a harassment complaint.
Employment discrimination is based on the same factors as harassment. It also includes denial of reasonable changes in the workplace due to religious beliefs or a disability. Improper questions relating to medical or genetic information or disclosure of such information is considered discriminatory.
How to Respond to a Complaint
If you receive a discrimination or harassment complaint, conduct an immediate investigation. Too often, employers think the complaint is unfounded or that person or persons accused of harassment would not act in that manner. Failure to investigate a complaint because you do not think it has merit will backfire spectacularly should a government agency or court get involved.
Always treat the person making the complaint respectfully. Dismissing a complaint out of hand or suggesting it is frivolous may cause the complainant to seek legal remedies. On the other hand, listening carefully to what the employee says and promising to investigate makes the employee feel their issue is taken seriously.
Yes, there are employees who tend to complain a lot. Most large companies have them. Do not make the mistake of ignoring these complaints just because of the individual. Such inaction could lead the person to file an EEOC complaint. You must always keep an open mind.
Keep all such complaints as confidential as possible. While you must inform the complainant that some information will become known due to the investigation, you do not want employees outside those under investigation to obtain details. That often leads to workers taking sides against the accused and accuser. Rumors may run rampant.
The Employee Handbook
Follow the procedures for harassment or discrimination complaints outlined in your employee handbook. The rules were adopted for a reason. Going outside the rules for either the accused or the accuser leads to potential accusations of unfair treatment.
If your company does not have an employee handbook, develop one. It is an important tool for protecting employers from harassment and discrimination complaints. Each employee should acknowledge receipt of the handbook in writing. This establishes employee awareness of harassment policies. Never adopt an employee handbook without legal review.
Not every accusation of harassment actually rises to that level. Isolated incidents, although unpleasant, do not usually constitute harassment. The same holds true of minor slights and annoyances. Of course, much depends on the severity of the event.
Determining the severity of the accusation involves asking certain questions of both the accused and accuser. Speak with the complainant to hear their version of what happened and when, who was involved, where it occurred and if there were any witnesses. Ask for any documentation, such as offensive emails. If there are witnesses, interview them as well.
Get the accused employee’s side of the story. Obtain as many details as possible. During all interviews, take extensive notes. If the two stories vary widely, look for other evidence. Any sort of attendance record may corroborate – or disprove –one party’s version. Keep meticulous investigation records.
If the accusations are very serious, consider bringing in an outside investigator. Such expertise is needed if more than one employee makes similar allegations against another. If high-ranking employees are accused, or if you do not think you can make a fair determination, going the professional investigator route is a wise idea.
Keep in mind it is against the law to harass those filing discrimination charges. Any type of retaliation subjects the employer to strict EEOC laws against such actions. Retaliatory acts may include:
- Pay cuts
Taking the Right Action
If you decide based on the investigation results that there was harassing or discriminatory conduct, take the right action. For a relatively minor offense, warn the accuser or advise counseling. For a serious offense, termination may prove your only choice. In either case, take action quickly.
This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
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