CONDUCTING AN EFFECTIVE INVESTIGATION OF EMPLOYMENT HARASSMENT – PART VIII – PREPARING THE INVESTIGATION REPORT AND ADDITIONAL CONSIDERATIONS

By Brad Ryder

Once the company has interviewed the victim, the harasser, and all witnesses and has taken appropriate measures to obtain, review, and preserve all documents and tangible evidence, the next step is to prepare a formal investigation report, have it approved by legal counsel and senior management, and notify the harasser and the victim of the company’s decision.  In doing so, it is advisable to consider each of the following:

• Determine what action – none, oral reprimand (not recommended), written reprimand, leave of absence, counselling, additional training, demotion, transfer, or termination – is appropriate.
• A final report must be prepared that outlines the allegations, responses to the allegations, efforts taken to investigate the matter, and any corrective action taken or to be taken.
• Do not delay in preparing the report.
• The final report should focus on the information gleaned from the investigation and be business-like in tone, without ambiguous or inflammatory language. The final report ought to avoid conclusions reached by the person who conducted the investigation, such as “[the employee who made the complaint] is lying.”  The better option is for the final report to state:  “[the employee who made the complaint] said XXX; employees A, B, and C said YYY; documents X, Y, and Z also state YYY.  No other witnesses or documentation substantiated XXX.”
• Compare the proposed disciplinary action to that taken in other similar situations, if any. Be sure to consider whether there is the potential for liability based on the company’s decision (e., could the harasser maintain a claim for discrimination on the basis of his/her sex, race, age, disability?).
• Forward the report to an attorney for review and to request an opinion letter or e-mail that addresses any concerns.
• Provide management with a copy of the report, along with the attorney’s opinion letter, and the recommended discipline for review, consideration, and approval.
• Wait for a response/decision from management.
• If the company concludes that the victim made false allegations, at least two federal courts have held that such conduct is a legitimate, nonretaliatory justification for termination. See Carrethers v. McCarthy, 817 Fed. Appx. 88 (6^th 2020); Villa v. CavaMezze Grill, LLC, 858 F.3d 896 (4^th Cir. 2017).

NOTE:  Neither of these cases was decided by the United States Court of Appeals for the Eleventh Circuit, which is the federal appellate court for Alabama, Georgia, and Florida.

• Inform the harasser of the company’s decision and disciplinary action, if any, to be taken. This should be in writing and the harasser should be instructed to sign the disciplinary action form.
• Do not apologize to the harasser, regardless of the disciplinary action to be taken.
• If the harasser is to be terminated for his/her conduct, specifically state it in the disciplinary action form. The termination should be effective immediately.
• During the exit interview, give the harasser an opportunity to state anything he/she wants to say in writing on the disciplinary action form.
• Inform the victim of the action that is to be/has been taken by the company.
• Periodically follow up with the victim to see if there are any ongoing issues, both during and after completing the investigation.
• Do not share information with anyone outside the company, other than legal counsel engaged specifically in relation to the investigation. This will minimize the possibility of a claim for defamation or intentional interference with business or contractual relations.
• If the company is contacted by a prospective employer of the harasser, only provide dates of employment and position(s) held. It is best not to divulge that the harasser was terminated, the reason(s) for termination, or whether the harasser is eligible for reemployment.
• If the harasser applies for unemployment compensation, consider contesting the application, but do not share the report with the Department of Labor.
• Scan and save an electronic copy of the entire investigation report, all witness statements, notes, and other documents.
• Retain both the hard copy and an electronic copy of the investigation report, all witness statements, notes, and other documents in an investigation file that is separate from the harasser’s or victim’s personnel file.
• Keep in mind the potential for a retaliation claim by the victim or any of the witnesses in the event of a future adverse employment decision.

Immediately after learning of a complaint of harassment or discrimination, an employer has a duty to investigate the allegations that have been made, which should include interviewing the victim, the harasser, and all witnesses and obtaining, reviewing, and preserving all pertinent documents and other tangible evidence.

Upon conclusion of the investigation, a determination must be made as to what discipline, if any, is appropriate.  A comprehensive and unbiased investigation report needs to be prepared, reviewed by legal counsel, and approved by senior management.  The harasser should be informed of the company’s decision.  Both a hard copy and an electronic copy of the investigation report and all supporting documentation needs to be retained by the company.  The results of the investigation and disciplinary action taken (if any) should not be shared with anyone other than senior management and legal counsel.

If you have questions about drafting employment policies, investigating claims of harassment or discrimination, responding to a Charge of Discrimination, or other employment-related issues, feel free to contact me at (256) 534-3288 or brad@ryderlaw.com.

This information is not intended to provide legal advice, and no legal or business decision should be based on its content.  No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.  Read full disclaimer.