Human Resource Best Practice For Harassment Or Discrimination Charges

By February 11, 2013 February 19th, 2015 No Comments

iStock_000009726138XSmallHarassment in the workplace has become an important concern for most business human resources departments.  Legislation regarding anti-discrimination or anti-bullying is a priority on the list of strategic initiatives for the Equal Employment Opportunity Commission. Human resource best practices for harassment or discrimination complaints is focused at limiting exposure and complying with all Federal, State and local laws.

Employers anti-discrimination policies should specifically prohibit harassment, as defined by federal and state law. Simply having a policy is the first step. The policy must be communicated and distributed to all employees.  Training initiatives to assure that all managers and employees understand the workplace policy is part of the process of assuring that employees know and understand the policy.  In fact, having each employee sign that they have received the policy may also be important if you are ever challenged whether the policy was in force or effect if a problem arises

What steps should you take as an employer if you are concerned that a potentially harassing or discriminating situation exists?

  1. Conduct an internal investigation. Regardless of whether there is a formal complaint, it’s important that as the employer, you begin an investigation as soon as you are concerned a situation may exist.  Sometimes an associate does not wish to come forward or file a complaint for fear of recrimination.  If the employee requests that the information is “confidential”, it is still incumbent upon the human resources team to investigate to determine whether there is any evidence to prove or disprove the charge.
  2. Consult with Counsel. Better to be prepared to deal with the situation rather than find out that a step was missed that could potentially be a liability.  Counsel will advise that you take the appropriate steps to protect your organization and to assure the associates involved are treated fairly and in accordance with applicable laws.
  3. Determine an investigation team.  Whether you use in-house human resources or outsourced hr, the investigation should be conducted by trained employees who are empowered to conduct an objective, unbiased and thorough evaluation.  If the team is from outside of the organization, the outsourced human resource professionals are less likely to be considered to have a bias.
  4. This is not the inquisition. Be sure that the employees understand that this is a fact gathering process and not an interrogation. Good communications can reduce or mitigate the exposure to potential liability.  Keeping associates informed is always a good policy.
  5. Keep good notes.  The team that is doing the investigation should maintain notes from their interactions with all associates.  Detail the date, time and name of the individuals that were interviewed as part of the process.
  6. Witnesses are protected.  Be sure that anyone who is involved as a witness understands that they are protected from retaliation.  If an individual exposes the harassing or discriminatory conduct, they are also protected from potential retaliation.
  7. At the conclusion of the investigation, all information should be reviewed and the company must make a decision.  Again, at this point, consulting with counsel may help to avoid any potential pitfalls.
  8. Once the decision is reached, all parties, the complainant and the potential offender should be advised of the findings of the investigation. A confidential file should be kept of all the information that was uncovered. The information should not be mixed in with any of the individuals file materials. The exception is that disciplinary actions or corrective actions should be added to the employee’s personnel file.
  9. Evaluate Policies. A thorough review of policies in place that may need to be updated should take place to avoid future situations.

Any complaints that are reported should be taken seriously, and the company must be thorough in order to investigate and determine whether an infraction has taken place.  The parties involved should be treated fairly and according to company policy as well as any applicable state, local or federal laws.  Periodically, policies should be evaluated to ensure that they are in keeping with any legislated or adjudicated changes that may have an impact.

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