Continued Stream of Retaliation Claims Highlights Importance
of Responding Properly to Employee Complaints
REPRINT FROM JD SUPRA
While most employers are familiar with the laws that prohibit discrimination and harassment in the
workplace, they sometimes do not know how to respond to complaints of discrimination and
harassment when they arise. The continued stream of lawsuits alleging retaliation against employees
highlights the importance of responding carefully to complaints of discrimination or harassment.
When confronted with a complaint of discrimination, harassment or other unlawful conduct, employers
should generally respond by conducting a prompt, thorough and impartial investigation, preferably
under the direction of counsel. Although managers may have pre-conceived notions about the merit
(or lack thereof) of a particular complaint at the outset, the objective of every investigation should be
to determine whether the complaining employee’s allegations are true, not to disprove them or to
facilitate a quick return to “business as usual.” Employers that undertake investigations for the
purpose of discrediting the complaining employee or sweeping the controversy under the rug as
quickly as possible significantly increase their potential liability because the investigation itself can
then be cited by the employee as evidence of insensitivity to discrimination and harassment.
If the investigation reveals that the complaint lacks merit, the information obtained through the
investigation will be very useful in defending against any claims the employee may later assert in
court. On the other hand, if the investigation produces evidence of misconduct by the persons
accused, the employer can then take appropriate corrective action and cite the investigation and
subsequent remedial action as evidence that it takes complaints seriously and responds to them as a
responsible employer would.
Employers can utilize human resources representatives or other management personnel to conduct
investigations, but most managers (even those in human resources) are not trained to conduct
investigations. For this reason, as well as others, employers should strongly consider hiring
independent investigators to conduct any necessary investigations. At a minimum, the investigation
should include interviews with the complaining employee and the individual(s) who allegedly engaged
in the conduct giving rise to the complaint. If third parties witnessed the conduct or are aware of
information otherwise relevant to the claim, the investigator should interview them as well.
Once the investigator has gathered all of the relevant information and documents, management
representatives and the employer’s attorney should review the information and determine whether
violations of law or policy have occurred. Employers should evaluate the evidence carefully and
avoid the temptation to conclude that they cannot determine whether a violation occurred merely
because the statements of the parties conflict. If the evidence supporting a complaint is more
credible than that against it, the employer should conclude that a violation has occurred. If a violation
has occurred, some form of discipline is appropriate, even if the misconduct has ceased. At the
conclusion of the process, the employer should inform both the complaining employee and the
accused employee of the result of the investigation and emphasize that retaliation against the
complaining employee is forbidden.
Aside from investigating employee complaints properly, employers should also be careful to prevent
managers who have been accused of discrimination, harassment or other unlawful practices from
making employment unilateral decisions which affect the complaining employee adversely. When a
manager is accused of an unlawful employment practice by an employee and soon thereafter makes
a decision that affects the complaining employee adversely, the employer may be vulnerable to
allegations of retaliation regardless of the merit of the original discrimination or harassment complaint
or the legitimacy of the subsequent decision. In order to minimize the risk of retaliation claims,
employers should either direct other managers (and/or human resources representatives) to confer
with the manager in question and make any necessary decisions jointly, or remove the manager from
the decision-making process entirely until the risk of a retaliation claim has subsided to an acceptable
level.
By responding to complaints in this manner, employers will demonstrate that they are sincerely
opposed to discrimination and harassment and will reduce their risk of liability. If you have any
questions about discrimination or harassment claims or investigations, or any other issue relating to
employment law, please contact one of our attorneys:
Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Karen Reinhold
Erik P. Khoobyarian
Shirley Jackson
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If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.
CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).
Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.
With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities
of Responding Properly to Employee Complaints
REPRINT FROM JD SUPRA
While most employers are familiar with the laws that prohibit discrimination and harassment in the
workplace, they sometimes do not know how to respond to complaints of discrimination and
harassment when they arise. The continued stream of lawsuits alleging retaliation against employees
highlights the importance of responding carefully to complaints of discrimination or harassment.
When confronted with a complaint of discrimination, harassment or other unlawful conduct, employers
should generally respond by conducting a prompt, thorough and impartial investigation, preferably
under the direction of counsel. Although managers may have pre-conceived notions about the merit
(or lack thereof) of a particular complaint at the outset, the objective of every investigation should be
to determine whether the complaining employee’s allegations are true, not to disprove them or to
facilitate a quick return to “business as usual.” Employers that undertake investigations for the
purpose of discrediting the complaining employee or sweeping the controversy under the rug as
quickly as possible significantly increase their potential liability because the investigation itself can
then be cited by the employee as evidence of insensitivity to discrimination and harassment.
If the investigation reveals that the complaint lacks merit, the information obtained through the
investigation will be very useful in defending against any claims the employee may later assert in
accused, the employer can then take appropriate corrective action and cite the investigation and
subsequent remedial action as evidence that it takes complaints seriously and responds to them as a
responsible employer would.
Employers can utilize human resources representatives or other management personnel to conduct
investigations, but most managers (even those in human resources) are not trained to conduct
investigations. For this reason, as well as others, employers should strongly consider hiring
independent investigators to conduct any necessary investigations. At a minimum, the investigation
should include interviews with the complaining employee and the individual(s) who allegedly engaged
in the conduct giving rise to the complaint. If third parties witnessed the conduct or are aware of
information otherwise relevant to the claim, the investigator should interview them as well.
Once the investigator has gathered all of the relevant information and documents, management
representatives and the employer’s attorney should review the information and determine whether
violations of law or policy have occurred. Employers should evaluate the evidence carefully and
avoid the temptation to conclude that they cannot determine whether a violation occurred merely
because the statements of the parties conflict. If the evidence supporting a complaint is more
credible than that against it, the employer should conclude that a violation has occurred. If a violation
has occurred, some form of discipline is appropriate, even if the misconduct has ceased. At the
conclusion of the process, the employer should inform both the complaining employee and the
accused employee of the result of the investigation and emphasize that retaliation against the
complaining employee is forbidden.
Aside from investigating employee complaints properly, employers should also be careful to prevent
managers who have been accused of discrimination, harassment or other unlawful practices from
making employment unilateral decisions which affect the complaining employee adversely. When a
manager is accused of an unlawful employment practice by an employee and soon thereafter makes
a decision that affects the complaining employee adversely, the employer may be vulnerable to
allegations of retaliation regardless of the merit of the original discrimination or harassment complaint
or the legitimacy of the subsequent decision. In order to minimize the risk of retaliation claims,
employers should either direct other managers (and/or human resources representatives) to confer
with the manager in question and make any necessary decisions jointly, or remove the manager from
the decision-making process entirely until the risk of a retaliation claim has subsided to an acceptable
level.
By responding to complaints in this manner, employers will demonstrate that they are sincerely
opposed to discrimination and harassment and will reduce their risk of liability. If you have any
questions about discrimination or harassment claims or investigations, or any other issue relating to
employment law, please contact one of our attorneys:
Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Karen Reinhold
Erik P. Khoobyarian
Shirley Jackson
Hopkins & Carley ∙ www.hopkinscarley.com ∙ Disclaimer
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.
CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).
Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.
With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities
