By Kathleen M. Connelly, Partner, Lindabury, McCormick, Estabrook & Cooper, P.C.
The ongoing #metoo movement has significantly raised awareness and intolerance of workplace sexual harassment. Consequently, employers in manufacturing and other industries can anticipate an increase in employees claiming that they are the victims of inappropriate workplace conduct. While the obligation of the employer to investigate such claims has been in existence for decades, now more than ever employers who are not prepared or choose not to investigate claims of harassment face dire legal and public relations consequences.
The Duty to Investigate.
Courts have long held employers negligently liable for workplace harassment when they fail to act reasonably towards eradicating these behaviors from the work environment. Critical components of these efforts are the manufacturing company’s duty to i) take all allegations of harassment brought to its attention seriously; ii) conduct a prompt, thorough, and impartial investigation into the claims; and iii) take appropriate disciplinary and other measures designed to stop the harassment if the claims are substantiated. A failure to investigate, or conducting an inadequate or “sham” investigation, exposes employers to both compensatory and punitive damages.
When to Launch the Investigative Process.
Not every negative interaction between employees in the manufacturing workplace warrants the formal investigative process discussed in this article. For example, if the complainant’s allegations suggest that the issue is simply a personality conflict between employees, more informal mechanisms may be appropriate (e.g., a facilitated discussion). In addition, minor isolated incidents, such as a single inappropriate joke, might be handled more informally, such as a discussion and warning that the behavior must not be repeated. However, if the complainant claims to have been subject to repeated or more egregious incidents of sexually-inappropriate verbal or physical conduct (e.g., persistent requests to go out for a drink, repeated sexual innuendos; a groping), or claims that they are being subject to a “hostile” or “abusive” work environment, a more formal investigation should be undertaken. And of course, when in doubt, opt for the formal process.
Who Should Conduct the Investigation?
This is the most important decision an employer in any manufacturing-based industry must make when facing harassment allegations, and is the one where many go astray. For economic reasons and a reluctance to air the charges to an outside party, employers may delegate the investigation to someone internally. Depending on the severity of the allegations, this might be appropriate. However, does the internal resource have the skill set to interview the complainant, the accused and potential witnesses and ask the appropriate follow-up questions; to know where to find direct and circumstantial evidence; to make credibility determinations and findings of fact supported by sufficient evidence; and to prepare a sufficiently detailed, well-reasoned investigative report? In the case of a small or medium size employer, chances are they do not.
The employer must also consider the optics of using an internal investigator. If the target of the investigation is a member of upper management, this raises legitimate questions about whether the internal investigator, who may hold a subordinate role, can objectively investigate the claims. Will the complainant lose confidence in the process and claim that the investigation was nothing but a sham? In contrast, an outside investigator comes to the table without biases towards any of the parties and thus is far less susceptible to a claim of partiality. In addition, incurring the expense of an outside party sends a signal that management takes the complaint seriously and is willing to surrender the claims to an objective third party for resolution.
Finally, there are significant benefits to a third party investigating the harassment claim. Inside investigators are often placed in the difficult position of making determinations that affect the job status of individuals they work with on a day-to-day basis. Moreover, after the investigation is concluded, internal investigators remain in the workplace where they are exposed to ongoing challenges from those who disagree with the findings. The outside investigator is not influenced by working relationships and thus has less reservations about making difficult decisions. In addition, once the investigative findings are issued, the outside investigator is not available for confrontation by those who are unhappy with the results.
The Investigative Process.
Regardless of who serves as the investigator, while the investigation is pending, manufacturers should consider whether interim remedial measures are appropriate (e.g., a separation of the complainant and the accused, an administrative suspension of the accused). All participants in the investigation must be assured that they will not be subject to retaliation for having participated in the investigation. Finally, if the claims are substantiated in any way, the employer must be prepared to undertake all of the appropriate remedial measures that are designed to stop the harassment from occurring, including sufficient disciplinary action against the offender, workplace sensitivity training or re-training of employees, and the imposition of monitoring mechanisms to gauge whether these actions have been effective.
Seek Guidance from Employment Counsel.
As soon as a claim comes to management’s attention, employment counsel should be brought on board to guide the employer through the investigative process. Counsel will not only prevent the manufacturer’s management from making critical missteps during the investigation, but can also implement measures that might protect certain aspects of the investigation from discovery by way of the attorney-client privilege.
About the Author
Kathleen M. Connelly is a partner with Lindabury, McCormick, Estabrook & Cooper, P.C. (www.lindabury.com), concentrating her practice in employment law and helping employers prevent sexual harassment and mitigate liability. She can be reached at firstname.lastname@example.org