by Phyllis Katz
Recently, when advising a client who was investigating a
complaint of sexual harassment, I had the opportunity to revisit the EEOC's
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors (issued on June 18, 1999).
The information contained in the Enforcement Guidance provides a useful tool
for employers engaging in workplace investigations.
The first steps to be taken, when a complaint is made,
are (1) assure that the person making the complaint is protected from any
continuing possible adverse action and (2) selecting the right person to
investigate. The investigator should be one who can objectively gather and
consider the relevant facts without any subtle operational or managerial
pressures being applied to the assigned tasks. The investigator should be
experienced in the skills required for interviewing witnesses and evaluating
Each investigation must be tailored to the particular
facts. The complainant, the alleged harasser, and third parties should be
interviewed. Other than the questions of who, what, where, when, and how did
the harassment occur, the person should be asked what was the response to the
described actions, are there any others to collaborate, and are there any
notes, documents, or physical evidence regarding the incident. Most advisedly,
the investigator should refrain from offering his or her opinion.
The Enforcement Guidance recognizes that investigators
will face conflicting versions of the relevant facts, and suggests the
invesigator use the following factors to weigh credibility:
None of the above factors are determinative as to
credibility and each must be weighed against the environment in which the
described events occurred. For example, the fact there is a record of similar
behavior in the past does not necessarily mean that it was engaged in at the
situation under investigation.
A determination should be made as soon as possible and
once made the parties should be informed. If the evidence is
inconclusive, the employer still has the obligation to institute preventive
measures such as monitoring and training. The follow-up action(s) should be
immediate and appropriate to the situation and should not adversely affect the
complainant. Even if the complainant's facts do not bear out, be sure that
decision makers know not to retaliate either against the complaining party or
those who participated in the investigation. While the underlying complaint may
lack merit, the employee complaining is under most circumstances now protected
against retaliation for bringing the complaint.
When conducting workplace investigations, employers need
to also be aware of the requirements under the Fair and Accurate Credit
Transactions Act of 2003 (FACTA), which amends the Fair Credit Reporting Act (FCRA). FACTA allows employers to retain third parties to conduct workplace
investigations without first notifying the target of the investigation or
obtaining their consent (i.e. as required in background checks). However,
if the third party conducting the investigation provides information on which
the employer takes adverse action against the employee, the employer must
disclose to the target of the investigation a summary of the third-party
investigator's report. The summary must include the nature and substance
of the report, but need not identify the individuals interviewed or other
sources of information.
If you need assistance with workplace investigations or
have other employment law concerns, the Sands Anderson PC
employment law team would be pleased to hear from you.
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