The #1 Mistake Arizona Employers Make When Responding to Complaints of Discrimination or Harassment
It is important that Arizona employers know how to properly respond to complaints of unlawful discrimination or harassment, particularly in light of the MeToo movement. Each year, I consult with employees seeking legal advice about a possible discrimination claim against their employer. I also represent employers addressing discrimination complaints. This gives me a unique vantage point to see where there was a breakdown in communication and how the miscommunication could have been avoided.
The most common, and most significant, mistake that I see employers repeatedly make is failing to advise the complaining employee about the results of its investigation. This includes what findings were made and what action was taken.
Instead, after completing their investigation, employers simply tell the employee “Appropriate action has been taken.” The employee is then left to wonder whether HR really conducted an investigation, what findings were made, and what action - if any - was taken. Many employees conclude that their complaint was “swept under the rug.” This causes the employee to become unhappy and distrusting, which results in a loss of productivity and a potentially toxic workplace.
Meanwhile, the HR representatives feel that they conducted a thorough investigation and took prompt remedial action. After all, they interviewed 10 witnesses, reviewed hundreds of emails, and issued a strict written warning to the harasser advising them that if anything like this happens again, they are going to be fired. The employee, however, was never told any of this information.
As a result, the employee hires an attorney and tells them that they do not believe their complaint was taken seriously. The employee’s attorney does not have enough information to properly advise the employee about whether appropriate action was taken, so their advice is often to file a charge of discrimination with the EEOC. This is a cheap and easy way for the employee and attorney to find out what investigation, if any, was conducted and what actions were taken. For the employer, however, an EEOC complaint is a time-consuming, aggravating, and expensive process.
This can all be avoided. Arizona employers should provide a reasonable amount of information to the complainant. Depending on the circumstances, the complainant should be told who was interviewed, what documents were reviewed, what findings were made, and what discipline, if any, was imposed.
There is no Arizona or federal law that prohibits an employer from providing this information to the victim. Notably, some courts have held that an employer owes a legal duty to provide this information to employees as part of their obligation to take “prompt remedial action.” The employer’s actions may not be “remedial” if the employee still feels uncomfortable because they do not know what actions, if any, was taken. The specifics and extent of the disclosure will depend on the circumstances, but simply telling the employee that “appropriate action has been taken” is likely not sufficient to make the complainant feel comfortable.
Maintaining confidentiality for the accused is also an important consideration because the employee’s allegations are exactly that – allegations. Gossip and rumors can have a negative impact on employee morale and productivity. Also, maintaining confidentiality is important when conducting an investigation – witnesses should not be intimidated or influenced by what others have said or done. Once the investigation has been completed, however, the employer should tell the employee what findings were made and what action was taken. If it is determined there was improper behavior, the employer should tell the complainant that the harasser has been given strict instructions not to retaliate and not to engage in similar behavior ever again.
Frequently, the complainant just wants validation that the employer conducted a legitimate investigation, determined that inappropriate conduct occurred, and warned the harasser not to do it again. So, why not provide this information? If you were the victim of harassment, wouldn’t you want to know?
About the Author: Jeffrey Silence is a partner at the Phoenix law firm of Jaburg Wilk. He helps employers address complaints of discrimination and defends them in litigation. He also advises employees who believe they are being discriminated against. He enjoys finding creative ways to help solve the common problems that employees and employers face, including miscommunication.
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