DISCRIMINATION: It's bound to come up, so the wise employer prepares now for complaints of discrimination in the workplace

By David Williams

After several generations of awareness and attention, you would think that discrimination in the workplace would go away. Not so. It’s still with us — and is likely to continue. 

The U.S. Equal Employment Opportunity Commission (EEOC), which has responsibility for enforcement of U.S. anti-discrimination laws, has processed between 80,000 and 100,000 complaints from workers in each of the past 10 years. While the spotlight is currently focusing on Hollywood, the problems highlighted in the news are, unfortunately, common. Victoria Lipnic, acting chair of the EEOC, stated in a recent interview, “We see this everywhere. This happens ... in workplaces all over the place. You look at the companies that, just last year, where the EEOC brought suits. It’s food processing plants, a correctional facility, a car dealership, restaurants, agriculture.  It’s across industries.”

There is no better time than right now for an employer to conduct a self-evaluation and to make sure it has the right processes and procedures in place for addressing discrimination in the workplace. Following is a list of 10 general suggestions to use in preparing for and responding to a complaint of workplace discrimination. As all circumstances are different, you may want to consult with an attorney to assess any anti-discrimination policy.

1. Have a Clear Anti-Discrimination Policy

The best response to a claim of discrimination starts long before any such claim even arises, with a clear anti-discrimination policy that employees are familiar with, understand and have ready access to. Creating a culture free from discrimination starts with a well-thought-out policy, and also includes review and training on the policy. Ideally such a policy will include clear definitions of what constitutes illegal discrimination, will state clearly that the employer does not tolerate such conduct and will give the employee clear directions on how to report such discrimination and what can be expected when a complaint is made.

2. Know What Discrimination Is and What It Is Not

Before any complaint is ever made, it’s also a good idea for an employer to familiarize itself with what does and does not constitute illegal discrimination. For example, employees often use the term “harassment” to describe personality conflicts as well as genuine discriminatory behavior — such as a grumpy supervisor who yells at everyone versus an employee who uses derogatory language directed at a co-worker’s gender, religion or ethnicity. On the other hand, employees can also be vague in describing conduct that, based on their description, appears benign but very well may implicate discriminatory and illegal conduct.

3. Know What Constitutes a Complaint

Even with a policy and training, complaints of discrimination may be inevitable, even for the most conscientious employers. So, it’s helpful to know what constitutes a complaint. Complaints are easy to identify when they come neatly packaged in an email or other written correspondence that says, “Complaint of Discrimination,” or a supervisor notifies you of observed misconduct. The vast majority of complaints do not, however, come so easily. There are no magic words necessary to qualify any statement as a complaint. Despite the most clearly worded policies and procedures, employees will often “complain” in less formal ways. Either way, employers should be prepared to recognize when a complaint is being made and respond accordingly.

4. Have a Plan, but Be Flexible

Given that a complaint of discrimination may be inevitable, it is a good idea to have a plan in place for responding to a complaint. This will generally include an investigation. An effective investigation should start with an outline of the primary players, including the complaining party, the accused and the involved co-workers, supervisors, etc. Before interviewing any of these individuals, it is advisable to develop a list of interview questions. Keep in mind, however, that these questions should only be a guide and interviews will frequently go down paths that were not previously considered. Employers should also prioritize interviews so as to be thorough, but not overbearing. Consideration should be paid to where interviews will take place. A private location may be better to avoid distractions, promote confidentiality, provide an appropriate level of comfort and reflect the formality required. Employers should not spend too much time planning, however. An investigation is only as good as the information it gathers, and memories fade with the passage of time. Moreover, a prompt investigation may allow an employer to identify and correct a problem before it turns into a liability. 

5. Consider Who Should Conduct the Investigation

Some consideration should go into selecting the appropriate person to conduct the investigation and interview employees. Considerations include the job titles and positions of the complainant and the accused, the type of conduct involved and potential exposure to the employer. The ideal investigator is someone who is — and is perceived as — objective and unbiased, has good interpersonal skills, has experience or knowledge in conducting investigations, knows the company and its policies, is organized, would be a good witness, can keep confidences and has a knowledge of discrimination and other workplace laws. Employers may choose to have a lawyer conduct the investigation. While this is not always necessary, having a lawyer conduct the investigation under the protection of the attorney-client privilege may offer some benefits. Keep in mind, however, that if the investigation leads to litigation, the attorney conducting the investigation may become a witness, and be disqualified from representing the employer. If the investigation is asserted as a defense against claims, the privilege may be lost.

6. Be Consistent in Responses to Claims

All complaints, large and small, should be investigated and documented. And similar incidents of confirmed behavior should result in similar discipline. If the investigation shows misconduct, then high-level executives, top producers or favored employees should be treated the same as any other employee who has acted similarly. Having the same person or group of individuals handle all investigations can help ensure consistency.

7. Interview the Relevant Parties

Interviews should be conducted with all of the parties directly involved, including any witnesses. Interviewees should be asked to identify other potential witnesses. Before all interviews, it is a good idea to include a brief description of the investigation and the importance of confidentiality. It is also important to explain that an individual will not be retaliated against for providing truthful information. A good interview will request facts and not opinions and ask for supporting evidence. When interviewing the complainant, be sensitive to issues raised, but remain neutral and do not commit the organization to a position either in support of or contrary to the complainant. When interviewing the alleged wrong-doer, briefly disclose the nature of the investigation. This will frequently, but not always, include the identity of the complainant, therefore it is imperative that the alleged wrong-doer understands the importance of confidentiality and prohibition of retaliation. A good interview will start with broad, open-ended questions and then drill down. For the alleged wrong-doer, it is also frequently helpful to explore other reasons the employee may have accused them. Interviews should never be one-on-one. It will always be important to verify the information that was shared in investigative interviews.

8. Document

Every investigation should be documented. Each document should be thoughtfully prepared, however, with the expectation that it will likely become an exhibit in court and the author subject to cross-examination. Record only the facts of the complaint. If the interviewer wishes to record thoughts, impressions, credibility assessments or other beliefs, they should be done on a separate document, along with the objective basis therefor. All documents should be dated and the author identified. To the extent documents are received or distributed during an investigation, records of both should be kept. Employees submitting written statements should sign and date those as well. When those documents are prepared for counsel, they may be privileged and protected.

9. Come to a Conclusion

In a “he-said, she said” scenario, it is difficult to determine the truth, but it is important to come to a conclusion based on the results of the investigation. The law does not require absolute certainty, only a reasonable response based upon a reasonable investigation, an objective determination of credibility and a determination of who is more likely to be telling the truth. This may be a good time to involve counsel, if they have not been involved previously. Regardless of the outcome, the result should be documented. Consideration should be given as to whether to prepare written reports to the accuser and the accused as well.

10. Be Proactive

The best employers are proactive and continually monitor the pulse of the workplace, seeking out disgruntled employees and potential discriminatory disparities instead of waiting for a complaint to be made. If a problem is observed, take care of it immediately with the employees involved before it has a chance to escalate. By creating a proactive workplace supportive of diversity, employers can minimize the harm created by an issue, which left unchecked, may grow into a lawsuit.

David Williams is an attorney with the Salt Lake City law firm of Snell & Wilmer. His practice is concentrated in labor and employment where he assists clients with employment matters and advises employers in all aspects of the employment relationship.