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Employee complaints and investigations: They should have known better

January 19, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

As most HR professionals know, responding to employee complaints can be trying at best and a quagmire at worst.  Most managers want to do the right thing, but there are those who think they know better and can do no wrong.  And there are employers that do know better but still fail to react properly.  The following are examples of situations that should have been handled better.

In this first case, the company had a harassment policy in place but failed to adequately train managers and enforce the policy.  A female employee was referred to by a male employee as “fresh meat.” The male employee did a number of inappropriate things toward the female employee.  Co-workers witnessed these incidents and some were subjected to similar behavior themselves. Following the written policy, the female employee reported the incidents to her “lead” coworker, according to company policy. But the  response was always to “just ignore it,” that if she ignored it they might stop, and that “[h]e does that to everybody” and “always acts like that.” Frustrated, the victim complained to her supervisor, who talked to the offender, but the talks had no long-term effect. Months later the company issued a written disciplinary report the male employee, stating that “complaints were made against [him] during an investigation and [were] not reported until later.” The employee was instructed “not to make any comments to other employees,” citing the company’s “anti-harassment policy.”  Although the employer eventually did the right thing, the case is still pending for trial.  (Walker v. Mod-U-Kraf Homes, No. 14-1038 (4th Circuit Court of Appeals, 12/23/14)

Harvard Law School obviously knows better. In one instance, the school took over a year to make its final determination and did not allow the complainant to participate in its extended appeal process, which ultimately resulted in the reversal of the initial decision to dismiss the accused student and dismissal of the complainant’s complaint. The school was cited by the U.S. Department of Education for failing to properly respond to two student complaints of sexual assault.  The entirety was widely reported in the news.

But maybe it’s a school thing? The University of the District of Columbia David A. Clarke School of Law (DCSL) was sued for race and gender discrimination for failing to promote an African American woman faculty member. She had worked for DCSL in various capacities for more than 20 years when she applied for tenure and promotion. The Faculty Evaluation Committee recommended tenure and transmitted her application to the dean, who initially recommended that the committee withdraw its approval due to the sparseness and quality of Brown’s legal scholarship. Once the dean learned that a law journal agreed to publish another of Brown’s articles, she endorsed the recommendation and forwarded her approval to the Interim Provost, who rejected the application. The President of DCSL agreed that tenure should not be awarded and did not submit her application to the Board. Around the same time, the administration considered the tenure application of a white male who had “no legal publications,” but was awarded tenure.  The case is pending for trial.  (Brown v. Sessoms, No. 13-7027 (D.C. Circuit, 12/19/14))

The takeaway for HR is simple. First, whenever you receive a complaint, take the information down and do not comment on the validity of the complaint.  Explain to the employee that the employer takes all complaints seriously and will keep it as confidential as possible, but the manager and senior management, at minimum,   will need to be informed. Urge the employee to inform you immediately if she or he feels retaliated against.

Second, get the who, what, when, where, and how; identify witnesses (if any) and investigate.  You may ask the witnesses and interviewees to keep the investigation confidential, but you cannot require them to do so.

Third, once the facts have been reviewed and a decision made, make sure that the complaining party understands the final determination.  Do not disclose what the penalty (if any) to the offending employee will be; instead, mention that action will be taken but will be confidential. If no penalty is to be imposed, make sure the complaining employee understands that although nothing could be proved one way or another, she or he should not hesitate to come forward again with any complaint.

Regardless of the outcome of the investigation, read the company’s harassment policy to the accused employee and remind him or her not to violate it.

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