Wouldn’t You Want To Know?
As the owner of a small law firm, you are proud of the firm that you helped build. One day, a female employee tells you that a male coworker is making her uncomfortable and won’t stop sexually harassing her. The #metoo movement is strong, and you had hoped that your male employees “knew better.” You thank her for reporting her concerns and tell her that you will promptly investigate.
After a prompt and thorough investigation, you issue a “final” written warning to the co-worker after reaching the conclusion that he was sexually harassing her. You also require that he undergo sex harassment training. You are convinced that he “got the message” and that he will never harass her, or anyone else, again.
You then proudly announce to the female employee that you promptly completed the investigation and appropriate action has been taken. When she asks what actions were taken, you say that you are not at liberty to discuss personnel matters. You, however, assure her that appropriate action has been taken and encourage her to report any concerns she may have going forward. She nods her head and thanks you.
You go home feeling great. Meanwhile, your female employee is distraught. Questions begin swirling. Does my coworker know I reported him? Is that why he stopped talking to me? What kind of investigation was conducted? What findings were made? Who else knows about the investigation? Was my co-worker disciplined? What happens now?
This is the most common mistake I see employers make. They fail to communicate with the victim, both before and after the investigation.
Before the investigation, the employer should ask the following questions:
i. Which witnesses should I interview?
ii. What discipline do you feel is appropriate
iii. Can you continue working with the harasser?
iv. What information are you comfortable with me sharing with the harasser?
v. Are you concerned about other employees finding out?
vi. What can I do to protect you while we investigate?
vii. Do you want me to separate you from the harasser during the investigation?
After the investigation, employers should tell the victim what investigation was conducted, what findings were made, and what discipline was imposed.
There is no Arizona or federal law that prohibits an employer from providing this information. In fact, some courts have held that employers owe a duty to provide at least some of this information as part of their obligation to take “prompt remedial action.” The action may not be “remedial” if the employee continues to feel uncomfortable.
Maintaining confidentiality can be important during an investigation to ensure witnesses are not influenced. There is, however, no Arizona or federal law that prohibits an employer from telling the victim of harassment what investigation was conducted, what findings were made, and what discipline was imposed.
Employers should also keep in mind that in many cases, the employee does not want the harasser to be terminated. They simply want to know what findings were made and what actions were taken.
So, why not provide this information? Wouldn’t you want to know?
About Author: Jeff Silence is a partner at Jaburg Wilk. He represents employees and employers with sexual harassment and all other employment matters. This gives him a unique perspective that helps him get results.
Previously published in: Arizona Attorney, January 2022