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Your Role in an Employer’s Discrimination Investigation

In prior articles, we have  written regarding the steps employers should [are arguably required to] follow to stop sexual harassment and other forms of discrimination in the workplace and reduce the risk to employer of incurring legal fees and costs, settlement payments and possibly substantial monetary jury verdicts arising from such workplace behavior.  Essentially those steps include adopting an effective and properly formatted anti-discrimination policy, proper preventative employee training employees on the terms of the policy, including how and to whom to report complaints of harassment or discrimination, conducting a thorough and unbiased investigation of such complaints and taking corrective appropriate action, if warranted after completion of the investigation.

Since there are deadlines within which an employee must file a complaint with an administrative agency such as the Equal Employment Opportunity Commission in order to preserve rights to pursue a claim of harassment or other discrimination, you should consider consulting with an attorney as soon as you feel you have been a victim of harassment or discrimination.  Employees should be prepared to promptly and thoroughly report complaints of harassment and/or discrimination and effectively interact with the employer during and even after the investigation of those complaints.

Employees should be prepared to make every effort  to reasonably comply with any existing  policies or procedures—even the most inadequate of policies, of which your employer has made you aware, including those pertaining to reporting complaints of harassment or discrimination.  You should report your complaint of harassment or discrimination to your employer in writing and provide as much detail as possible.  Such detail should include the dates, times and the specific nature of the harassment or discrimination and provide the names and contact information of persons you believe witnessed the offensive conduct.  Since it is common during the employer’s investigation for employers to report that the person(s) an employee identified as witness(es) denied seeing any improper conduct, you should also keep a record of other person(s) who may be able to confirm that the person(s) you identified as witness(es) was present when the harassment occurred. The identity of other victims of such behavior is also helpful information to deliver to the employer. Knowing of other corroborating witnesses may cause more candor on the part of identified witnesses. You should also document in dated writings all communications between you and the employer regarding your complaint, both during and even after the completion of any investigation.

If you are interviewed as part of your employer’s investigation, be prepared to thoroughly answer all questions asked by the employer and conduct yourself in a professional and cooperative rather than hostile, defensive or combative manner during the interview. However, this is not to say that you’ll be treated with the same respect; often complaining employees are mistreated and in such cases, disengaging from the process and seeking legal counsel is all that can be done to protect your workplace rights.

Remember! Your words and demeanor may be documented. If you have not previously provided a formal written complaint, you should request that the person conducting the interview afford you the opportunity to do so either during or after the interview.

When or if the employer notifies you that it has completed its investigation and determined that your complaint was “unfounded,” ask to be provided information regarding the results of the investigation, including a copy of any investigative report. Ask the investigator [in a dated writing] for information regarding the persons interviewed and the information collected, what documents or other records were reviewed, and try to obtain a copy of any investigative report. Asking for such a reportings or for such information does not guarantee its delivery; in fact, in most cases such requests will be ignored. These requests and the responses should be documented too.  It is likely that your employer may refuse to provide you with information regarding the results of its investigation claiming that it is confidential, or proprietary.  However, the fact that you requested information regarding the results of the investigation, in writing, will be helpful if you later decide to pursue a claim through an administrative agency or later in court.

One of the obligations imposed upon employers in connection with their investigation of harassment or discrimination complaints is to take appropriate corrective action.  Even if your employer claims your complaints were unfounded and thus no corrective action may be taken, you should consider asking the employer to consider whatever corrective action you deem necessary to protect yourself and avoid further harassment, such as being reassigned a different work  area or schedule, to avoid additional contact with your harasser.

If your employer claims your complaints are unfounded and you are subjected to further harassment, you should again thoroughly document the specifics of such harassment as well as any acts of retaliation taken against you by your employer or harasser for making your complaint. “Trumped up” discipline or substantial detrimental workplace changes often follow such complaints by employees; this is called retaliation and its illegal. Document, document!

Following the recommendations made in this article should assist and protect you; these measures will also assist your lawyer in pursing any claim made before an administrative agency or, if necessary, thereafter in court.

– By Joan London and Jeff Elliott

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