Finding the Facts - Disciplinary and Harassment Investigation

C. C ONFIDENTIALITY OF I NVESTIGATION R EPORT : H OW M UCH C AN OR S HOULD B E D ISCLOSED TO THE C OMPLAINANT OR THE A CCUSED ? The investigator’s written report should be maintained in confidence. A copy should not be given to the complainant, [alleged] wrongdoer, or anyone else, unless there is a substantiated need-to-know. There are circumstances, however, where disclosure of the report may be appropriate or required by law.

1. H OW M UCH D O Y OU T ELL THE C OMPLAINANT ?

a. Competing Interests: Remedial Action v. Privacy The results of the investigation are in: an employee has engaged in inappropriate or unprofessional conduct. Based on a review of the investigator’s report, the employer imposes discipline. The employer sends a letter to the complainant thanking him/her for raising the complaint with the district and informing him/her that the investigation has concluded and that corrective action is being taken. How much of the investigation results and disciplinary action taken should be shared with the complainant? The answer to this question is, “It depends on the circumstances.” Sharing with the complainant the investigation results and disciplinary action taken may mean that employees will not want to participate in workplace investigations and even if they do, may not reveal all the key information they possess. On the other hand, certain complainants may insist that they have a right to the investigation report or claim a need to acquire a copy of it. In the case of public safety officers, confidentiality rights of the respondent (alleged harasser) are protected by law. As is true with all public employees, the respondent enjoys constitutionally and statutorily protected privacy rights. The employee’s rights of confidentiality and privacy must be balanced against the employer’s interest in disclosure. In the case of unlawful harassment, for example, the employer’s interest in disclosure may outweigh the alleged harasser’s right of privacy. Communicating the results of the investigation to the complainant may be a critical aspect of the employer’s obligation to respond effectively to the complaint. While the harasser may have a right to privacy as to the general public, the right of privacy is not absolute and triggers a balancing of the public interest in disclosure against protection of the individual’s right to confidentiality. Sometimes the balance may favor disclosure to the victim. Communication to the complainant should demonstrate the employer’s belief that harassment claims are serious and that it is committed to a discrimination-free working environment. A complainant who has knowledge of the disciplinary action taken against the perpetrator of misconduct is also less motivated to pursue further legal action knowing that the perpetrator has been appropriately disciplined for the conduct triggering the complaint. b. Issue: Under the Privacy “Balancing Test,” Does Remedial Action Outweigh Individual Privacy Rights?

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