ADAPT AND LEAD allegations in order to respond, employers should take reasonable steps to limit disclosure of information obtained during the course of the investigation. Employers should also be aware that blanket confidentiality directives prohibiting employees from any discussion of an ongoing investigation may, in some circumstances, run afoul of the National Labor Relations Act, which can apply to both unionized and nonunionized workplaces. Therefore, confidentiality instructions should be generally tailored to the specific investigation rather than imposed as an automatic blanket rule.
Document the Investigation
As a best practice, employers should thoroughly document each element of the investigation, including the alleged complaint, any communications made regarding the investigation, and interview records and notes made during the investigation. Any records created should be maintained in a file separate from personnel records.
Prevent Retaliation
EEO laws also prohibit employers from retaliating against employees who allege harassment under such laws or who participate in the investigation( e. g., taking an adverse employment action— such as a demotion, compensation decrease, or termination— against a complainant or witness because they filed a claim or provided testimony in the course of an investigation). If, however, it is necessary to take an adverse employment action against a complainant or witness for reasons unrelated to the harassment allegation or investigation, the employer should document the independent, legitimate business reason for any such action.
In addition, employers should establish and communicate clear anti-retaliation policies to all relevant parties, including the complainant, the accused individual, managers, and HR personnel. Employers may also encourage employees to report any perceived retaliation through appropriate channels.
Make A Determination And Take Appropriate Corrective Action
Following the investigation, the investigator will evaluate the evidence gathered and reach a determination as to the veracity of the harassment claim. The investigator should then prepare a final report that summarizes their findings along with any relevant support for their determination. Such report should also be maintained in a file separate from personnel records.
If, following a fair and thorough investigation, an employer determines that harassment has occurred, the next step is determining the appropriate corrective action. The nature of the corrective action should be proportionate to the severity of the harassment and other relevant factors, including whether it is a first offense or a repeated issue. For example, for more minor infractions, employers may consider issuing a verbal or written warning or providing supplemental anti-harassment coaching or training. For more serious instances of harassment, employers may consider terminating the employee’ s employment.
Employers may also consider whether the investigation revealed broader, systemic concerns, including insufficient policies and training or a pattern of conduct by a particular individual. If so, employers may want to take corrective action at the organizational level.
Communicate To Relevant Parties
Employers should inform the complainant that the investigation has concluded and provide a general description of the outcome( e. g., that appropriate action was taken), without necessarily disclosing the specific discipline imposed on the accused. The accused should be informed of the outcome and any resulting consequences. When communicating with the broader workforce or witnesses, employers should generally share only the information necessary to address legitimate business needs.
Follow-Up As Appropriate
In some instances, employers may consider following up with the parties periodically following the conclusion of the investigation to ensure that the conduct has stopped and that neither the complainant nor any witnesses have experienced retaliation. Employers may also consider monitoring ongoing workplace interactions between the parties where they continue to work together in close proximity.
Employer Takeaways
Failure to appropriately respond to harassment allegations can lead to significant legal, financial, and reputational harm to an employer. Therefore, employers should ensure they understand their obligations under EEO laws and adopt best practices when responding to internal claims of harassment. +
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