Finding the Facts - Disciplinary and Harassment Investigation

The prevalence of harassment claims, and the employer’s corresponding duty to investigate, can be easily placed into perspective with statistics. In 2017, the EEOC received 84,254 complaints of discrimination and harassment. 9 Of these complaints, the EEOC prosecuted 201 claims in various courts of law and obtained approximately $42.4 million in monetary benefits for aggrieved employees. 10 An employer should take every complaint seriously. Anytime a complaint of discrimination or harassment is received, either formally or informally, the district must conduct an investigation. 11 This is true even where the complaint appears to have no merit whatsoever. An investigation may also be triggered by the following:  When a person, other than the aggrieved person, complains about discrimination or harassment;  When someone indicates that inappropriate conduct is occurring, even if the word “discrimination” or “harassment” is not used;  When a supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment. In this situation, the supervisor must request that any inappropriate conduct cease and that an investigation be conducted. 1. P RACTICE P OINTERS TO R ECOGNIZE THE T RIGGERING D UTY TO I NVESTIGATE Do not wait for a formal complaint. If you know of possible harassment, or think you may know of possible discrimination or harassment because of rumors or what you see or hear, report it to human resources or as otherwise appropriate in your district so it is promptly investigated. In Van Zant v. KLM Royal Dutch Airlines , 12 the court held that a supervisor’s knowledge of improper conduct may be directly imputed to the employer, and thus trigger the duty to investigate, if the supervisor is placed on notice of the improper conduct and maintains a sufficiently high level in the employer’s hierarchy. Similarly, in Varner v. National Super Markets, Inc. , 13 the court held that an employer’s notice of improper conduct, even though the employee failed to follow the employer’s procedures for reporting misconduct, triggered the employer’s duty to investigate. 2. W HAT IF THE C OMPLAINANT D OES N OT W ANT AN I NVESTIGATION ? Sometimes, complaining parties who report an incident of discrimination or harassment request that the employer do nothing. However, honoring such a request could place other employees at risk for discrimination or harassment. Also, “doing nothing” or failing to investigate could place the public district at risk for liability for failure to investigate and failure to take prompt remedial action. Once on notice of an alleged occurrence of discrimination or harassment, the employer must investigate, despite the complainant’s request to “do nothing” or not to investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 10