What do I do when an employee makes a claim of discrimination?

October 14, 2019

First – Don’t panic! Employees may simply gripe to another employee or a supervisor about issues in the workplace, but sometimes the complaint may involve issues that need to be immediately addressed by the employer. If an employee complaint focuses on some type of discriminatory or harassing conduct that is based on an employee’s “protected status” (this term may have various meanings under state and federal laws, but often includes race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information), an employer must take prompt and effective steps to stop the conduct without interfering with an employee’s employment. This initial step may necessitate a call to an employment attorney so the employer understands how to properly stop the offending conduct without interfering with an employee’s terms and conditions employment. If an employer changes the terms and conditions of employment in the process of stopping the conduct, the employer may also inadvertently create the basis for a retaliation claim by the employee who is filing the complaint. A retaliation claim is a distinct legal claim from a discrimination claim that may also be asserted by the employee.

Once the employer has taken steps to stop the offending conduct, the employer must gather information to conduct a thorough investigation to determine if there has been any violation of the company’s policies or practices. If there is no policy, you may need to obtain an attorney’s advice on what to focus upon for the investigation because the employer is not making a determination of whether a law has been violated. The employer’s investigation will only focus on whether there is evidence to establish that (more likely than not) the conduct occurred and that the conduct violated an employer’s business practice or policy.

The person assigned to conduct the investigation should have experience in such matters. This may be a human resources manager or other officer of a company. If no one has experience in conducting workplace investigations, an employer should hire an outside investigator to assist with the investigation. Employment attorneys often offer this service and will work with an employer’s existing legal counsel to conduct the investigation. Regardless of who is chosen, the employer must utilize someone to conduct the investigation who is not an involved party and is employed in a management level (or retained by management) to direct the involved employees during and after the investigation. In the event the owner or officer of a company is involved, you should obtain the advice of an attorney before conducting any investigation. Other reasons an outside attorney/investigator may be needed to conduct the investigation include the size of an organization, time constraints, or other reasons specific to the company.

An employer’s legal counsel should understand that, under certain circumstances, an internal investigation conducted by in-house counsel may not be covered by the attorney-client privilege and subsequently subpoenaed by the state or federal agency or discoverable by the complainant after a discrimination charge has been filed. Additionally, in-house counsel should also review any potential ethical issues with conducting the investigation based on state bar ethic’s rules.

Once the investigation is complete, the employer must understand how to handle the involved parties with implementing any action items based on the investigator’s findings. This may involve changes to the involved parties work conditions, employee training, discipline, or termination of an employee. An employer must obtain guidance from an attorney in order to understand the appropriate response after an investigation is complete and a determination has been made with regard to the complaint, and in order to avoid creating a retaliation claim by any of the involved individuals in the matter. The employer will also need to discuss the outcome of an investigation with the complaining employee in an appropriate manner and that does not interfere with any another employee’s confidentiality rights regarding employment/disciplinary information.

Please note that regardless of an employer’s response to an internal employee complaint, an employee always maintains the right to file a charge of discrimination against the employer with the applicable state or federal agency.

If an employer receives a written complaint that has been filed with a state or federal agency or court (usually sent via U.S. Mail or served by a sheriff or constable at the place of business or a manager or officer’s residence), the employer must promptly retain an attorney to guide it through the litigation process. Those served with such complaints must respond to the complaint with certain pleadings with corresponding deadlines. An employer, manager or officer who has been named in a complaint filed with a state/federal agency or court will need an attorney’s advice and representation before they file any response to a discrimination complaint.

An early and thorough investigation by an employer will not only help to stop the offending conduct, but a prompt response to a complaint also allows the employer to address the issues raised by the employee, and, hopefully, resolve those issues to everyone’s satisfaction so that the employee does not feel the need to file a complaint with an outside agency.

Please contact Maureen Louise Pomeroy if you have any questions about discrimination complaints or investigations at 978-358-7550.

This publication, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Pomeroy Law P.C. and its attorneys. This newsletter is intended for general information purposes only and you should consult an attorney concerning any specific legal questions you may have.