When accusations of discrimination or harassment emerge, employers should consult with an employment law defense lawyer as soon as possible. Aside from seeking counsel, what actions can you take right away and what mistakes can you avoid?
The American Bar Association suggests avoiding the following mistakes.
- Failing to investigate immediately. Waiting for an employee to submit a formal statement about harassment or discrimination or waiting for witnesses to submit written statements is the most common mistake made by employers. Any investigation delay can make it appear like you’re ignoring the situation or not taking it seriously.
- Inserting cross-examination into the process. Conducting an investigation without bias is important for avoiding claims of unfair investigation against your company, even when you suspect a complainant, witness or the accused individual is lying. A better approach is to ask in a respectful manner that the person explain contradictory statements or ask for evidence that refutes the statements.
- Not maintaining confidentiality. You must keep the investigation confidential along with the information obtained during the investigation. If witnesses suffer backlash from the investigation because their identity is made known or for any other reason, as the employer, you may become subject to claims of retaliation.
- Not interviewing all witnesses with knowledge of the alleged events. The investigator should interview all the witnesses because it will help determine whether information is consistent.
- Failing to make known the company’s policy against retaliation. Retaliation is a common problem, according to the EEOC and comprises about one third of the cases the EEOC handles. It is important to reinforce the company policy by reminding all parties that retaliation will not be tolerated against complainants who make good faith claims. This focus also helps protect you as the employer.
- Failing to conduct a thorough investigation. Overlooking records, such as telephone or cell phone records when they are crucial to an investigation is a common mistake.
- Failing to end the investigation with a conclusive finding. When investigations end with disputed evidence by both sides and nothing is concluded, the investigation is tantamount to no investigation. Some conclusion must be reached based on a preponderance of the evidence. In other words, the investigator must reach a conclusion that it most likely that the harassment did or did not occur.
Put an Experienced Employment Defense Lawyer on Your Side
Employers dealing with harassment or discrimination issues should seek legal advice as soon as possible. Stephen Hans & Associates brings decades of experience to the table in every case we handle.