Disciplinary and Harassment Investigations

1. P RACTICE P OINTERS TO R ECOGNIZE THE T RIGGERING D UTY TO I NVESTIGATE Do not wait for a formal complaint. If you know of possible harassment, or think you may know of possible discrimination or harassment because of rumors or what you see or hear, report it to human resources or as otherwise appropriate in your agency so it is promptly investigated. In Van Zant v. KLM Royal Dutch Airlines , 9 the court held that a supervisor’s knowledge of improper conduct may be directly imputed to the employer, and thus trigger the duty to investigate, if the supervisor is placed on notice of the improper conduct and maintains a sufficiently high level in the employer’s hierarchy. Similarly, in Varner v. National Super Markets, Inc. , 10 the court held that an employer’s notice of improper conduct, even though the employee failed to follow the employer’s procedures for reporting misconduct, triggered the employer’s duty to investigate. 2. W HAT IF THE C OMPLAINANT D OES N OT W ANT AN I NVESTIGATION ? Sometimes, complaining parties who report an incident of discrimination or harassment request that the employer do nothing. However, honoring such a request could place other employees at risk for discrimination or harassment. Also, “doing nothing” or failing to investigate could place the public agency at risk for liability for failure to investigate and failure to take prompt remedial action. Once on notice of an alleged occurrence of discrimination or harassment, the employer must investigate, despite the complainant’s request to “do nothing” or not to investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has regarding an investigation.

The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation.

LCW Practice Advisor

3. W HEN S HOULD THE I NVESTIGATION B EGIN ? The investigation should start within a few days of the receipt of the complaint (if one is filed) or when the employer otherwise becomes aware of possible discrimination, harassment or other alleged misconduct. If an investigation is delayed, memories fade, evidence may disappear, and the employer may be accused of failing to take prompt and effective remedial action. The following cases illustrate this principal:

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 8