I need some feed back on a descrimination investigation. 

I have interviewed the employee's with the complaint, the supervisor in question and the head of the company.  I am about to type and have the statements signed from all the parties involved.

The supervisor in question and the head of our company have requested me to release the names of the parties who made the complaint. I have refused to do so up till now.  I explained if the names are not released the chance of a retaliation suite is at a minium. 

The employee's poor job performances have been document for some time and layoffs are happining in our industry due to the economy. 

Have I handled this correctly?  Should I release names?  I need feed back as soon as possible please.  

I don't think you can keep this from the head of the company. It is their company and they have a right to know what is going on. 

IT HR:

I don't think you can keep this from the head of the company. It is their company and they have a right to know what is going on. 

 

At the same time, telling the head of the company that not knowing is safer for him or her may make sense to them.

thanks all

I am going play devil's advocate just a bit here. On the retaliation situation.....by not knowing who the complaint was from, either the supervisor or head of the office could inadvertently do something wrong.  Unless they are super careful with EVERY employee.   Which of course they should be....however even the best manager/boss makes mistakes.

Is this employee on the layoff list anyway? Was his/her name on there prior to filing a complaint?

One of the top things we tell employees is that while we will try to keep the investigation confidential, that at times it is impossible to do so.

Wouldn't the supervisor that was under investigation have a specific right to know who is the accuser? How could a proper investigation take place if the accused has no opportunity except in general terms (I don't do this or that) as opposed to defending him/herself with specifics of a charge from a particular person. Am I missing something?

cappy:

Wouldn't the supervisor that was under investigation have a specific right to know who is the accuser?

Absolutely not. In fact, it is the Company's obligation to protect the alleged victim, part of which is to prevent the potential for retaliation, which is best done by minimizing exposure of the complainant's part in the investigation (i.e., spawning it by making a complaint). People often confuse workplace processes with legal processes but they are quite different.

For example, employees of non-governmental firms generally do not have freedom of speech while working. The company can make you goose step while on company property and say "Phyllis Diller For President" every time you pass through a doorway as a term and condition of your non-governmental job. They can, with exceptions for protections under the Wagner act, tell you that you cannot discuss certain things. For example, they can say you can be fired for discussing any Walt Disney movie. In a similar vein, due process under employer investigations is not the same as due process under the law. Employees generally have no right to confront their accuser or confront pretty much anybody that company processes do not allow confrontation with under penalty of dismissal.  Employers generally don't even have to be competent at doing investigations into employee wrong doing as long as alleged victims are protected and malfeasance is stopped or sufficiently squelched.

Ok that is a good explanation. However there is one more clarification. Maybe I'm dense after all it is Friday. An accusation is made in the work place and of course the 'victim' must be accorded all of the dignities and entitlements of protection by law. Now the accused very well may be innocent, may not be as well. How is the accused afforded rights in a proper investigation? Should not the accused be questioned if a situation of complaint occurred? If so then the accused would by default know who the accuser is. I'm not referring to a confrontation face to face between accuser and accused. But primarily how is the accused protected as well?

 I understand that due process in employee investigation is different. Sometimes it is hard to tell though. But you said in the last part of your response "alleged victim" and malfeasance is stopped. But what I'm hearing is that the accused is somewhat guilty automatically based on an accusation.

 Ok . . mentor me. You have got me on the right path before.

cappy:

Ok that is a good explanation. However there is one more clarification. Maybe I'm dense after all it is Friday. An accusation is made in the work place and of course the 'victim' must be accorded all of the dignities and entitlements of protection by law. Now the accused very well may be innocent, may not be as well. How is the accused afforded rights in a proper investigation? Should not the accused be questioned if a situation of complaint occurred? If so then the accused would by default know who the accuser is. I'm not referring to a confrontation face to face between accuser and accused. But primarily how is the accused protected as well?

 I understand that due process in employee investigation is different. Sometimes it is hard to tell though. But you said in the last part of your response "alleged victim" and malfeasance is stopped. But what I'm hearing is that the accused is somewhat guilty automatically based on an accusation.

 Ok . . mentor me. You have got me on the right path before.

Fair enough: there's no assumption that the alleged perpetrator has done anything incorrect.  Often, multiple people know about the complaint before HR knows.  The complainant will have told their friends and will probably cite them as witnesses in the case.  Generally speaking, you have to weigh the gravity of the complaint against the potential for future violations in determining how you proceed.  For example, if the complainant alleges quid pro quo of a carnal variety or describes a situation that a reasonable person would believe may relate to a threat of imminent harm, then you have to take steps to protect the complainant immediately, potentially including paid leave at 100% cost to the Company.  Failure to substantiate the claim will not allow you to punish the complainant unless you can substantiate that the complaint is in fact false.  Claims are often unsubstantiated (i.e., you can't demonstrate that the complaint is true or likely to be true or have any truth in it at all, such as in a so-called "he-said/she-said" scenario).  That doesn't mean that you don't try to separate the parties and ensure the complainant is not in a position to be harassed by the alleged violator.  Similar to conflict of interest situations in which you want to prevent even the appearance of a conflict of interest, appearance of possibility of ongoing harassment is also unacceptable.

If, on the other hand, the complaint includes things like elevator eyes and inappropriate language but excludes things like humiliation and physical contact, you can certainly talk to some witnesses before you talk to the alleged violator after notifying a supervisor to keep an eye out for anything improper.  One of the first things I'll do is bring the supervisor into the intake interview, assuming the sup is not part of the complaint.  Then when the complainant leaves (paid time off to leave the premises, back to work, 60 minute break, whatever), I'll talk to the supervisor first and see what he or she knows.  Often, things that end up resulting in complaints were things the supervisor was aware of but either a) didn't understand the complainant was offended by the conduct, or didn't think the conduct was offensive or not offensive "enough".  They often remember the part of harassment prevention training that covers the overly sensitive employee and, in some environments, apply that reasoning to one co-worker calling another a word that literally simply refers to a female dog.  Your job then is to find out if what happened is true and consider the severity of the matter.

Frighteningly often, you also sometimes learn that the complaint stems from a long history of inappropriate behavior instigated by the complainant.  More than once I've followed up a harassment complaint with the complainant, informing them that I was unable to substantiate their complaint, followed by a written warning to the complainant for violations of company policy, often related to improper conduct or poor work performance.

In short, the fact that the company has immediate obligations to protect the complainant does not protect the complainant from their own record of behavior and performance.  The only time where you can't be sure someone has gotten away with something is in a he-said/she-said, because you still have to ensure that the supervisor is not in a position to commit the type of act described in the complaint while also not punishing the complainant (which often means not transferring, moving, or otherwise disturbing their work setting).  If you can't move the subordinate, you have to move the manager or find other ways to ensure the subordinate is protected.  It's not a perfect system and the victim sometimes is the accused because the Company has to protect itself whether the complain has merit or not simply because the merit of the complaint cannot be known.  Ask any attorney or grizzled employee relations veteran what to do about a he-said/she-said sincere quid pro quo complaint from a young, very attract female about a 40-something manger or executive.  It's simply not simple because it's highly context sensitive.  It's also rarely like that.  It is far more often naughty language gone awry and everybody needs to clean up their language and get back to work.

It's not a perfect system and the victim sometimes is the accused because the Company has to protect itself whether the complain has merit or not simply because the merit of the complaint cannot be known.  . . . It's simply not simple because it's highly context sensitive.  It's also rarely like that.  It is far more often naughty language gone awry and everybody needs to clean up their language and get back to work.

 Forgive me for taking so long to view this. As usual you have done a detailed and fine job of presenting varying circumstances. I just completed an EEO investigation based on several of the comments you made. Without getting into detail the claim was not an unsubstantiated claim (that is probably something happened but there is not enough evidence to prove which side is telling the truth) rather it was unfounded (that is the preponderance of credible evidence does not support the complaint).

 

It is true "it simply is not simple. . ". However you have given more than ample examples of what to think about. Thank you.

I don't think I have ever had a harassment case that was simple!  I haven't had two cases that were alike either.  They all have their own messy webs to them!

Glad to help.

 

Keep this in mind: if it weren't for the bad behavior of employees in an ever increasingly complex legal environment, we would not really have a profession as it exists today.  As soon as the government passes a labor or employment law with an employer side penalty higher than the cost of the management distraction from business high enough to justify head count, HR becomes larger and/or more powerful.