What procedures should managers follow if an employee comes to them with a complaint about harassment or discrimination?
Quick Answer
Quickly implement previously established procedures that outline how to conduct a prompt, fair and thorough investigation, and take appropriate remedial action if needed.
Legal Perspective
Shulman Rogers
Potomac, Maryland
Managers need to make sure that the company conducts a prompt, thorough and fair investigation of the complaint, advises Employment Law Attorney Joy Einstein (jeinstein@shulmanrogers.com) of the firm Shulman Rogers.
Managers should be trained to report the complaint to whoever at the company is tasked with dealing with such complaints, likely either HR, in-house counsel, or outside counsel.
The company, often with the manager’s input, should decide whether intermediate action, such as putting the accused on a temporary leave of absence or taking other mitigating measures is appropriate based on the nature of the complaint. Then the company should investigate the complaint, which should include interviewing:
- all witnesses
- the complainant, and
- the accused.
After interviewing all witnesses, the company should make a finding based on the interviews, other information collected, and the credibility of the witnesses. If the company finds the complaint has merit, it should determine what action it must take to prevent future discrimination or harassment. After determining what action, if any, should be taken, the company should meet with both the complainant and the accused to discuss the results of the investigation and any action taken.
Relevant Case Law
Garcia v. Recondo Technology
Davis v. Administrator, Unemployment Compensation Act
Thompson v. Aeroquip Inoac Co.
HR Insight
First Place AZ
Phoenix, Arizona
If the organization has a dedicated HR department, the manager should direct the employee there, according to HR Manager Sarah Marchese.
If not, the manager can ask the employee if this was done by a peer, another manager, etc. This will help the manager determine who to escalate the matter to – such as a VP, etc. If the company utilizes a PEO, then the employee should be directed there.
CertiK
New York, New York
The manager should let the HR team know so they can begin an investigation, says HR Leader Erin ImHof.
The manager should thank the employee for coming to them and let them know their information will be confidential to the extent possible.
Poppelmann Plastics
Claremont, North Carolina
The manager should go directly to HR to report the issue to allow HR to begin the required investigation, according to HR Manager Ashley Morgan. The manager could also offer to go with the employee to HR to report the issues.
The Cost of Noncompliance
$400K Title VII mistake: EEOC says company transferred accused harasser instead of addressing complaint against him
Who was involved: McDonald Oil, a Georgia-based corporation that operates gas stations and convenience stores in Alabama and Georgia, and five female employees who worked in an Alabama location.
What happened: The EEOC’s lawsuit alleged the company “ignored frequent complaints from multiple female employees and customers about ongoing sexual harassment by a male employee.” Among other things, the man allegedly solicited female co-workers for sex and repeatedly asked them for details about their sex lives. The suit further claimed that “multiple managers” were aware of the alleged harassment, but they failed to respond in a way that corrected “the hostile work environment.” The company’s mistake, according to the EEOC, was that it “chose to transfer the harasser to another store,” where he allegedly continued to harass female employees, rather than address the issue.
Result: The company paid $400,000 to five female workers who alleged they suffered “severe mental anguish and emotional distress” due to the ongoing harassment. Under a three-year consent decree, the company will also:
- Revise its policies and procedures to prevent future incidents of sex-based harassment
- Provide training to managers on proper ways to document and investigate complaints of sexual harassment.
- Provide training to employees on their right to work in an environment free from sex-based harassment.
Info: McDonald Oil Company to Pay $400,000 to Settle EEOC Sexual Harassment Lawsuit, 1/25/23.
Sexual harassment suit: Appeals court affirms $300K award for employee
Who was involved: Rock-Tenn Services, Inc., and a former plant worker in Tennessee.
What happened: According to the former employee’s sexual harassment lawsuit, he was repeatedly touched at work by another male worker. The other worker “slapped him on the tail,” grabbed his buttocks, and simulated sex while grabbing him from behind by the hips. When the worker complained to management, the employer did not follow its own guidelines for investigating harassment complaints and categorized the alleged misconduct as horseplay. After a jury trial, a trial court awarded $300,000 to the worker. The employer appealed.
Result: The Sixth Circuit affirmed the $300,000 award for the employee, finding the jury permissibly found he was subjected to gender-based harassment because the offender admitted he targeted only men and also permissibly found the employer was liable for the harassment because it did not take adequate steps to end the misconduct.
Info: Smith v. Rock-Tenn Services, Inc., 813 F.3d 298 (6th Cir. 2016).
Key Takeaways
- Report the complaint to whatever party is charged with conducting investigations into reports of harassment or discrimination.
- Proceed to conduct a prompt, fair and thorough investigation into the allegations.
- Interview all relevant witnesses and the complaining party.
- Document the results of all investigative measures taken.
- Take prompt remedial action if warranted by the results of the investigation.
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