How is an employer to discipline an employee for misconduct when that same employee has filed harassment or discrimination complaint without risking a retaliation claim? I recently read an article by Allen Smith in Society for Human Resource Management that explores this common struggle. Here is a summary of what I learned:
A decision-maker, such as an HR professional, who is unaware of a complaint is best suited to investigate any misconduct before management disciplines for misconduct. This reduces the risk of a retaliation claim according to Daniel Kaufmann, an attorney with Chicago’s Michael Best & Friedrich. Per Kaufmann, the advantage is the company can honestly say the decision-maker reviewing the misconduct was unaware of the claim if discipline is brought. According the Equal Employment Opportunity Commission (EEOC) in its August 29, 2016 Guidance, retaliation can’t be shown without establishing that someone was aware of protected complaint activity.
How can an employer negate retaliation claims? According the Guidance from the EEOC, some of the ways include establishing that other applicants or employees who did not file complaints were treated similarly, or if despite the existence of a possible retaliatory motive, adverse action still occurred.
The EEOC also notes employers can minimize being accused of retaliation by adopting plain-language policies prohibiting retaliation, documenting employment actions, and training staff to identify and stop retaliation.
Attorney Angela Cummings with FordHarrison in Charlotte, NC shared HR investigators can be seen as more neutral than a supervisor from the same department as a complaining employee accused of misconduct. HR professionals are often well-versed in conducting thorough investigations. Occasionally, when HR is unable to investigate, a manager can be enlisted provided they are not the complaining employee’s manager.
Bill Nolan, an attorney with Barnes & Thornburg in Columbus, Ohio says choosing the right investigator is a “judgement call.” Nolan adds that managers should be trained to reach out when there is any hint of a potential legal HR issue. Legal implications complicate otherwise routine disciplinary issues when management partners with HR.
Critical to any misconduct investigation is ensuring parties named in the employee’s complaint are not conducting the investigating, according to Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, NC. Accused parties listed in an employee’s complaint should recuse themselves from any investigation.
Cummings also said that “HR should keep tabs on the company’s overall culture. Are employees fearful of bringing complaints of retaliation or [other complaints] to HR or to their managers? If the answer is, ‘yes,’ the employees are more likely to use external forums” when voicing concerns.
To see Smith’s full article, click here: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeoc-guidance-retaliation.aspx .
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