Disciplinary and Harassment Investigations

The alleged harasser should be admonished that he/she shall not retaliate against the complainant or anyone else associated with the investigation for having complained about harassment or being involved in the investigation. This admonition should also be given to anyone else who has the authority to take adverse employment actions against persons involved in the investigation. We generally recommend checking back in with a complainant after an investigation is completed to ensure the employee is not experiencing retaliation. This should be done no matter whether the allegations were sustained or not. (See http://bit.ly/2MXWIeB , p. 8) vii. Ensure Confidentiality, to the Extent Possible Complaints must be processed as confidentially as possible. Identities should not be disclosed, except to the extent necessary to continue the investigation. Statements made by employees should not be disclosed to other employees, unless it is necessary to elicit specific, relevant, and necessary information from the employee. Occasionally, complaining parties and/or witnesses ask for an assurance of confidentiality before providing information. The DFEH’s Workplace Harassment Guide caution that can only promise limited confidentiality that the information will be limited to those who “need to know” but cannot promise complete confidentiality. The reasons for this instruction, according to the DFEH’s Workplace Harassment Guide, are:  If the complaint is of a potential violation of law or policy, the employer will need to investigate, and in the process of investigating it is likely people will know or assume details about the allegations, including the identity of the person who complained. This is true even when the name of the complainant is kept confidential since allegations are often clear enough for people to figure out who complained about what.  The individual receiving the complaint will usually have to consult with someone else at the company about what steps to take and to collect information about whether there have been past complaints involving the same employee, etc. That means the complaint will be discussed with others within the organization.  The agency may need to take disciplinary action. Again, while the identity of the person who brought the complaint may in some cases be kept confidential, the complaint itself cannot be. (See Appendix http://bit.ly/2MXWIeB , p. 3)

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 47