Although this section focuses mainly on harassment and discrimination laws, other legislation such as the Occupational Safety and Health Act (OSHA) and the Drug-free Workplace Act (DWA) require investigations when allegations of unsafe conditions or employee drug use surface.
Sexual and unlawful harassment laws are not new. In fact, these are discrimination protections as part of Title VII of the Civil Rights Act of 1964, which applies to most employers with 15 or more employees. But remember, state laws may apply even if you have less than 15 employees.
Title VII protects individuals from discrimination, of which harassment in employment is only one. Although the following information is primarily based on sexual harassment and other offensive conduct within the workplace, an investigation may be warranted and useful in the workplace even if the reported behavior does meet the legal definitions of harassment, but instead may violate company policy or standards. Failure to investigate and act on a complaint of discriminatory comments, improper verbal or physical contact, or even what may seem to be a few isolated jokes, may quickly develop into a harassment claim. An investigation can quickly put a stop to unprofessional and unacceptable behavior, returning productivity in the workplace, and protecting the company from a developing legal claim.
In 1998, two Supreme Court decisions defined the following circumstances in which employers are legally liable for harassment:
“The company will be held responsible for harassment committed by a supervisory employee, even if executives and human resources were not aware of what was going on”; and
“An employer is generally responsible for harassment by a manager or supervisor if the harassment results in a “tangible employment action”—an action that significantly changes the harassed employee’s job status, such as getting fired, demoted, or reassigned—even if the employee never complained and the employer had no idea what was going on.”
Although these legal decisions defined employer liability, they also stated that employers who have a communicated anti-harassment policy and investigate harassment complaints quickly and fairly can avoid liability in certain kinds of cases, even if the employee proves that he or she was harassed.
In short, your company has a legal duty to take effective action to stop harassment as soon as management learns of it, whether the harasser is a supervisor or coworker of the victim, or even an outside party. To fulfill this legal requirement, you must conduct a prompt, impartial investigation, and implement effective remedies to ensure the behaviors cease.
How do we know if the reported actions rise to the level of being illegal?
The following page will define how the law defines harassment. However, you shouldn't base your decision to investigate solely on whether the alleged conduct meets the legal standards. An internal investigation may be useful In determining violations of company policy or unacceptable behavior (such as theft or the use of drugs or alcohol in the workplace), and will help reveal if these behaviors may have led to any harassment violations in the workplace. An investigation will also ensure a consistent process in dealing with employee relation concerns and provide necessary documentation to prove a fair and effective conclusion.
Unlawful Harassment Defined
According to The Equal Employment Opportunity Commission (EEOC):
“Harassment is unwelcome conduct that is based upon race, color, religion, sex (including pregnancy), national origin, age (40 or older) disability or genetic information. Harassment becomes unlawful where:
- Enduring the offensive conduct becomes a condition of continued employment, or
- The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abuse.
Unlawful Harassment Defined, Continued
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not serious in nature, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
You may notice that these definitions are very similar and may include behavior that may also be defined as bullying.
Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances including, but not limited to, the following:
- The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
- The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
- Unlawful harassment may occur without economic injury to, or discharge of, the victim.
When state laws are more restrictive
Many states are increasing the protective classes covered under and expanding requirements for employers under harassment laws. For example, 18 states currently include sexual orientation and/or gender identity as protected classes.
Click here for a summary of the harassment laws in your state. (PDF download)
If you have not done so already, take the necessary actions to ensure harassment does not continue while the investigation is taking place.
This may include temporarily moving the complainant or accused to another department or work location, changing the reporting supervisor, or even suspension pending the outcome of the investigation if the situation creates a safety concern.
The majority of workplace investigations can be completed by a senior level manager or HR representative. When choosing the internal investigator, the chosen party must:
- be able to remain open-minded and unbiased throughout the investigation.
- be respected by employees and management.
- have a clear understanding of the process and legal requirements of an investigation, or be using a compliant platform such as InvestiPro.
- have sufficient time to perform and document the investigation thoroughly and completely.
Once the investigator has been chosen, it is also important to determine who will be the final decision maker of the outcome after the investigation is complete. This most often is an owner, CEO, VP of the complainant's department or legal counsel.
- Do you have anti-harassment and discrimination policies? If so, you will want to prepare several copies of the policies to provide to investigation participants.
- Obtain and confirm contact information for all involved parties prior to the start of the investigation to ensure the proper notices and follow up can be performed.
- Locate a private place for the interviews to be held. It is best to find a location that doesn’t include the interviewee walking through the middle of the workplace, and where the conversation cannot be heard by others.
- Gather documents that may provide evidence, and review them thoroughly prior to the interviews.
- Take steps to protect potential evidence such as having the most senior employee in the IT department backup email of the involved parties so that critical evidence may not be deleted.
- If security and safety are a concern, place either a security officer or senior manager with a phone outside the door of the interview room and set a plan for communication if assistance is needed. Remember, your safety comes first. If at any point you are feeling uncomfortable or unsafe, stop the interview and leave the room.
- Remind the interviewee that your goal is to be unbiased, and to obtain the information needed to come to a fair and appropriate outcome.
- Start with broad, general questions to help the interviewee to relax and establish a rapport.
- When the interviewee is asked a question, let him/her continue to talk until finished before asking another question.
- The exception to this is if the interviewee goes off topic. Then you should direct the conversation back to the question asked.
- At the end of the interview, thank the interviewee for their time and cooperation.
Put away your judgments and emotions before the interviews. It is imperative that the interviewer comes to the table with an open-mind, and is prepared to remain calm and in control.
Employers are not allowed to require confidentiality from the participants in the investigation as this may violate the employee’s right to concerted activity under the National Labor Relations Act. (All forms and disclosure provided are compliant with this rule).
Often, it is helpful to take a minute before each interview to breathe and put yourself in the interviewee's shoes. They often come in anxious, upset, or even angry. If you stay calm, communicate your understanding of their position, and that the primary purpose of the meeting is to gather information, not to be judgmental, this will often set the tone for a more productive interview.
Can you answer “yes“ to these questions?
- I have a basic understanding of why an investigation is needed.
- I can be, or select, an impartial investigator.
- I can remain calm and professional, even if the parties being investigated get upset.
- I have determined the final decision maker who will review all of the investigative materials and make a final outcome decision. (In some cases, this may be you.)
If so, it’s time to begin the investigation process.
Still have questions? Remember, your membership allows you to email an HR investigator.