New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

     1.     Does My Policy Prohibit All Forms Of Unlawful Harassment?

We occasionally come across policies that prohibit sexual harassment, but are silent as to other types of illegal harassment. This is usually a tell-tale sign that the employer’s policy urgently needs to be updated. Sexual harassment was first recognized by the courts as a form of discrimination in the mid-1980’s. Since that time, the various federal and state anti-discrimination laws have been interpreted to prohibit harassment on the basis of other protected categories, including but not limited to race, religion, national origin, disability, and age. In states such as New York – where the New York Human Rights Law includes no less than fourteen distinct protected categories (and counting) – employers must be sure to amend their policies as necessary to remain current with changes in the law.

     2.     Does My Policy Provide Accessible – And Alternative – Avenues Of Complaint?

Effective anti-harassment policies must provide reasonable methods for employees to bring alleged inappropriate conduct to their employer’s attention. A policy which requires that a complaint be made to a single person, for example the employee’s supervisor, is inadequate because it creates the potential for forcing the employee to complain to the very person accused of wrongdoing. To avoid this obvious chilling effect, employers should make available several avenues of complaint. At the very least, the employee should have the option to present a complaint to someone in his or her immediate chain-of-command, as well as someone outside his or her direct line of authority, such as a human resources manager. Never create the impression (express or implied) that the employee is required to lodge a complaint through a single individual. The more alternatives the better.

Employers should also publish contact information so that employees know exactly how to reach the persons to whom they can complain. Appropriate contact information (e.g., telephone number, e-mail address and/or mailing address) for each avenue of complaint should be included in the written policy and posted prominently in the workplace. That way, an employee has little excuse for not bringing a complaint of harassment to the employer’s attention.

     3.     Does My Policy Provide Reasonable Assurances Against Retaliation?

Just as employers have a legal obligation to implement reasonable measures to prevent and correct workplace harassment, employees have a duty to take reasonable steps to avoid or mitigate the effects of unwelcome conduct. This means generally that an employer can expect an employee to take advantage of an internal complaint procedure provided by the employer. An employee’s failure to lodge an internal complaint may be excused, however, if he or she can show a reasonable fear of retaliation. To minimize this possibility, it is critical that an employer’s policy clearly explain that retaliation against complaining employees will not be tolerated. This message should be reinforced at the time of a complaint. Moreover, the policy statement must also be enforced as necessary.

Of course, these are not the only issues to consider when assessing the effectiveness of your company’s anti-harassment policy and procedures. Keep in mind that the most comprehensive, water-tight, anti-harassment policies are only as good as the manner in which they are implemented and enforced. Courts and administrative agencies are increasingly looking at whether supervisors and employees are given training to reinforce written policies and to otherwise ensure that all employees understand the employer’s internal complaint procedure. While these measures are not technically required by law, it is advisable that such additional steps be taken to enhance the protections afforded by written anti-harassment policies.

1. Select an Appropriate Investigator.  The person assigned to investigate should have a few critical qualities: a thorough understanding of the issue being investigated; an ability to command the respect of the individuals to be interviewed; the ability to maintain confidentiality; and a lack of personal involvement in the situation under investigation.  Often, a human resources professional will fit this bill.  However, there are situations where a third-party with greater investigatory experience is a better option.  For instance, in-house or outside counsel may be better equipped to navigate potentially serious harassment or other allegations which may result in litigation.  If counsel is involved, there is also a possibility that certain communications may be protected by the attorney-client or attorney work-product privileges.

2. Make the Investigation a Priority.  As a general rule, a prompt investigation is key.  If inappropriate or illegal conduct is occurring, it is imperative to stop it as quickly as possible.  Even if the investigation shows that the allegations are unfounded, a prompt investigation lets the workforce know that the company takes such matters seriously, and has the additional benefit of supporting certain legal defenses to harassment claims.

3. Prepare the Topics/Questions in Advance.  The interviewer should prepare thoroughly for the interview. At a minimum, make an outline of the topics to be covered.  Whether to prepare a set of specific interview questions is a judgment call which depends, in part, on the expertise of the investigator.  Writing out key questions in advance minimizes the risk the investigator will miss something.  If many individuals will be interviewed, a list of questions may result in more consistent and controlled interviews.  On the other hand, it is a mistake to become so wedded to written questions that you cannot deviate from them.  If a witness offers relevant information which you did not anticipate, be flexible. Set your prepared questions aside and ask follow up questions tailored to the new information.

4. Interview All Necessary Witnesses.  Failure to interview all persons who may have relevant information is a common mistake.  Employers often have a natural inclination to “keep a lid” on the investigation by interviewing only one or two employees.  While no one wants a sensitive issue to be the topic of employee scuttlebutt, you should not allow fear of employee gossip to result in an incomplete or imbalanced investigation.  Limiting the investigation unnecessarily can yield uninformed conclusions and leave the adequacy of the investigation and the efforts of the investigator open to legal challenge.

5. Use Two Management Representatives.  As a general rule, you should have another management representative with you during each interview.  Occasionally a person interviewed later claims to have been threatened or bribed, or otherwise claims that the interview process was mishandled.  A team interview approach will provide two witnesses to contradict those claims, and has the advantage of allowing one representative to take thorough notes while the other asks questions.

6. Start With the General and Move to the Specific.  In most cases, your opening question should not be to narrow:  for example, “Did you see John Smith walk up behind Mary Jones on Thursday in the lunch room and slap her on the back?”  A good investigator starts with open-ended questions instead.  This approach increases the likelihood that you will receive a witness’ best recollection instead of a recollection influenced by someone else’s version of events, and that you will receive more information.  Of course, if the open-ended questions do not elicit sufficient information about the relevant events, ask direct questions about specific incidents.

7. Consider Interim Protective Measures.  In extreme situations the company may need to take steps to protect the alleged victim while the investigation is ongoing.  If a witness may be physically harmed or intimidated, it may be necessary to remove the accused from the workplace until the investigation is over.  In other situations, it may be relatively easy to switch employees’ work assignments so that the accused and accuser do not interact while the investigation is proceeding.  Keep in mind, however, that moving the alleged victim could be considered unlawful retaliation.  It is therefore better to move the accused, not the accuser.

8. Guard Against Retaliation.  An employer may not retaliate against an employee who complains about unlawful harassment or discrimination.  Recently, the U.S. Supreme Court ruled in Crawford v. Metro. Gov’t of Nashville & Davidson County that Title VII’s prohibition against retaliation extends to a witness who corroborates allegations of unlawful conduct.  You should warn the accused that he or she may not engage in retaliation and, remind each witness that, if he or she experiences retaliation, to report it to the company immediately.