Preventing Workplace Harassment, Discrimination, and Retaliation

Case Study on Investigating Allegations of Harassment, Discrimination, and Retaliation

Swenson v. Potter 196 Swenson believed that a co-worker was sexually harassing her but she did not report it to anyone. Once management became aware of Swenson’s complaints, they spoke to the alleged harasser and opened an investigation. The investigation did not find sufficient evidence to support formal discipline. Swenson then sued for sexual harassment. The Ninth Circuit held that the employer could not be held liable under Title VII. The employer’s prompt response once it learned of the alleged harassment and the fair and unbiased investigation fulfilled its duty to Swenson.

A. A PPOINT AN I NVESTIGATOR For purposes of accountability and continuity, one person should be responsible for investigating complaints. If possible, this responsibility should not be delegated to a different person during the course of the investigation.

The investigator, to fulfill the responsibility for acting promptly and fairly, must be provided the necessary resources, training, and access to information and potential witnesses.

If the charges are against a high-ranking employee, elected official, or involve particularly sensitive, complex, or specialized issues, consider retaining an independent, outside investigator who is qualified to undertake this type of investigation.

B. K EEP THE I NVESTIGATION C ONFIDENTIAL Complaints should 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 except when required to elicit specific, relevant, and necessary information from the employee. Occasionally, complaining parties ask for an assurance of confidentiality before providing information. Employers cannot and should not guarantee complete confidentiality. Rather employers should tell complaining parties and witnesses that the complaint will be kept confidential to the extent necessary to conduct a full investigation or to the extent necessary to obtain testimony in any hearing that might be held. Less frequently, complaining parties who report the incident of harassment request that the employer not do anything about it. Honoring such a request could place other employees at risk of harassment, and it could place the public employer at risk for liability for failure to investigate and take prompt remedial action. Once on notice of an alleged occurrence of harassment, the public employer is required to investigate—even if the complainant requests that there be no investigation. The employer should therefore advise the complainant that it will investigate the

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 51