Employment Law Advisory for July 17, 2013 - Continued Stream of Retaliation Claims Highlights Importance of Responding Properly to Employee Complaints

While most employers are familiar with the laws that prohibit discrimination and harassment in the workplace, they sometimes do not know how to respond to complaints of discrimination and harassment when they arise. The continued stream of lawsuits alleging retaliation against employees highlights the importance of responding carefully to complaints of discrimination or harassment. 

When confronted with a complaint of discrimination, harassment or other unlawful conduct, employers should generally respond by conducting a prompt, thorough and impartial investigation, preferably under the direction of counsel.  Although managers may have strong feelings about the merit (or lack thereof) of a particular complaint at the outset, foregoing an investigation for that reason is almost always a bad idea.  California law requires employers to take reasonable steps to prevent discrimination and harassment, and courts view investigation of complaints as one of the steps that responsible employers should take following receipt of a complaint.  Employers that elect not to investigate complaints of unlawful conduct significantly increase their potential liability because the lack of an investigation itself can be cited by the employee as evidence of insensitivity to discrimination and harassment. 

When investigating a complaint, the employer should seek to determine whether the complaining employee’s allegations are true, not to disprove them or to facilitate a quick return to “business as usual.”  Just as employers that forego investigation of employee complaints increase their risk of liability, so, too, do employers that undertake investigations for the purpose of discrediting the complaining employee or sweeping the controversy under the rug as quickly as possible, since such an approach also reveals an indifference to discrimination and harassment.  Failing to conduct an investigation, or conducting an investigation for the wrong purpose, often contributes significantly to decisions to award punitive damages against an employer. 

If the investigation reveals that the complaint lacks merit, the information obtained through the investigation will be very useful in defending against any claims the employee may later assert in court. On the other hand, if the investigation produces evidence of misconduct by the persons accused, the employer can then take appropriate corrective action and cite the investigation and subsequent remedial action as evidence that it takes complaints seriously and responds to them as a responsible employer would. 

Employers can utilize human resources representatives or other management personnel to conduct investigations, but most managers (even those in human resources) are not trained to conduct investigations.  For this reason, as well as others, employers should strongly consider hiring independent investigators to conduct any necessary investigations.  At a minimum, the investigation should include interviews with the complaining employee and the individual(s) who allegedly engaged in the conduct giving rise to the complaint.  If third parties witnessed the conduct or are aware of information otherwise relevant to the claim, the investigator should interview them as well.  Investigators should document their efforts, and the information they obtain, carefully.  Poor or unwise documentation can also substantially increase an employer’s risk of liability. 

Once the investigator has gathered all of the relevant information and documents, management representatives and the employer’s attorney should review the information and determine whether violations of law or policy have occurred.  Employers should evaluate the evidence carefully and avoid the temptation to conclude that they cannot determine whether a violation occurred merely because the statements of the parties conflict.  If the evidence supporting a complaint is more credible than that against it, the employer should conclude that a violation has occurred.  If a violation has occurred, some form of discipline is appropriate, even if the misconduct has ceased.  At the conclusion of the process, the employer should inform both the complaining employee and the accused employee of the result of the investigation and emphasize that retaliation against the complaining employee is forbidden. 

Aside from investigating employee complaints properly, employers should also be careful to prevent managers who have been accused of discrimination, harassment or other unlawful practices from making employment unilateral decisions which affect the complaining employee adversely.  When a manager is accused of an unlawful employment practice by an employee and soon thereafter makes a decision that affects the complaining employee adversely, the employer may be vulnerable to allegations of retaliation regardless of the merit of the original discrimination or harassment complaint or the legitimacy of the subsequent decision.  In order to minimize the risk of retaliation claims, employers should either direct other managers (and/or human resources representatives) to confer with the manager in question and make any necessary decisions jointly, or remove the manager from the decision-making process entirely until the risk of a retaliation claim has subsided to an acceptable level. 

By responding to complaints in this manner, employers will demonstrate that they are sincerely opposed to discrimination and harassment and will reduce their risk of liability. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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