Employer Information
If an Employee Complains of Discrimination

If you receive a complaint of discrimination, the following information may be helpful to you. These are generic ideas that should be supplemented with other information, and tailored to the particular situation. Consider that employment discrimination complaints involve interpersonal and organizational issues, in addition to legal issues.

Gather Information - The matter may be assigned to someone who is objective and not directly involved in the complaint, and is knowledgeable of equal employment opportunity law. Create a case file, and maintain it confidentially. Interview the complainant about the the complaint. Invite the complainant to submit a written statement describing the complaint, and relevant records and correspondence. Advise the complainant to report any future acts of suspected discrimination, or retaliation. When you learn the details of the complaint, you may want to consult with an attorney, or other professional, about the relevant law, and what information you should obtain to evaluate the complaint.

Then conduct an investigation of the complaint, using a qualified personnel officer or outside investigator. Information developed during the investigation may not be protected from discovery in litigation. There is mixed case law about whether the investigation may be protected from disclosure as attorney work product if the investigation is conducted by an attorney.

Prepare an investigation plan including the bases and issues of the complaint; the relevant employment policies and procedures; a listing of relevant documents to obtain; and, a listing of witnesses to interview. The bases of the complaint indicate the type of the alleged discrimination, for example, race (Black), sex or gender (female), and age (over 40). The issues in the complaint are usually employment actions, like refusal to hire, unfair wages, or termination of employment. The bases and issues should be the focus of your investigation. The employer's policies and procedures describe the employment processes that are relevant to the complaint. The documents obtained during the investigation should pertain to the complainant, and the other persons who are identified as comparisons. The listing of witnesses may be obtained from talking to the complainant, and then the alleged discriminatory manager. The witnesses should be people who have direct knowledge of some aspect of the facts in the case.

During the investigation, collect the material that you will need to evaluate the complaint, including laws and regulations; employment policies and procedures; and, personnel records. Notify the alleged discriminatory official of the complaint, and allow that person the opportunity to have input into the investigation. Interview witnesses as appropriate, and prepare interview reports. Invite the witnesses to sign the reports. Inform the alleged discriminatory official, and witnesses, that the law prohibits retaliation because a person has filed a discrimination complaint, participated in a related proceeding, or opposed what she reasonably thought was discrimination. To the extent possible, conduct the investigation in a quiet manner, and try to protect the privacy interests of all persons involved. Keep the primary parties informed generally of the status of the matter. Allow the complainant and the alleged discriminatory official to have a final opportunity for input before the investigation is concluded.

Evaluate the Evidence - After the investigation is completed, have a qualified person evalute the evidence. Consider preparing a report describing the evidence that was disclosed regarding the alleged discrimination, and possibly analyzing the evidence to reach a conclusion of whether unlawful discrimination occurred. Remember that the investigation report may not be protected from disclosure during litigation. Discrimination may be shown by: direct evidence of discriminatory bias because of a protected basis; disparate treatment - different treatment of similarly-situated persons from different equal employment opportunity groups; or an employment policy or practice that has an adverse impact on a protected equal employment opportunity group, and cannot be justified as job-related and consistent with business necessity. Remember that disability discrimination laws require the reasonable accommodation of persons who have mental or physical disabilities. Depending on the experience of your human resourses staff, you may want to consult with an attorney or other qualified professional when evaluating the evidence. The purpose of this evaluation is to determine whether a preponderance of the evidence shows that unlawful discrimination may have occurred. You should also be alert to whether the evidence shows that the company's employment policies and procedures were not followed, which may expose the employer to claims like wrongful termination. Also be aware of possible violations of other employment laws.

Take Appropriate Action - If you conclude that unlawful employment discrimination may have occurred, take immediate and appropriate action to remedy it. The circumstances of the particular case determine what is the appropriate remedial action. The corrective action may include granting to the complainant an employment opportunity that was unfairly denied, or rescinding an undeserved adverse employment action. The legal requirement is to "make the complainant whole" by placing her where she would have been if the discrimination had not occurred. Appropriate corrective action may also include disciplinary action against the person responsible for the discrimination. Exercise caution in stating your conclusions about the investigation, because an admission may be used in litigation. If you conclude that discrimination did not occur, you may inform the complainant of that decision, and of any rights that she may have to appeal the conclusion. If the investigation revealed that employment policies or procedures were not followed, or that the employment action was unfair otherwise, you may want to take corrective action even if you conclude that unlawful discrimination did not occur.

Consider whether you want to attempt to resolve the matter with the employee through mediation or some other form or alternative dispute resolution. It is usually in the best interests of employers to have employees who feel that they have been treated fairly. You can use an outside mediator to seek settlement of the discrimination complaint, or you can attempt resolution yourself. Invite the complainant to state what she seeks as a resolution, and consider that in formulating a proposed resolution. Whenever possible, try to resolve the dispute within your work environment to save the time, expense and disruption of handling a complaint filed with a government agency or in court. Facilitate early resolutions of complaints, when possible. Remember that even if an employee has filed a discrimination complaint against your organization you can still communicate with them about the matter, unless they are represented by an attorney. If you reach a settlement with the complainant, usually put it in writing in a letter of understanding, or an agreement. In appropriate circumstances, you may have the complainant sign a waiver of rights in return for the terms of the settlement.

You should probably consult with an attorney regarding waivers and releases. The usual test of the effectiveness of releases is whether they were knowing and voluntary. However, some laws have particular requirements, like the Older Worker's Benefit Protection Act relevant to waivers of rights under the Age Discrimination in Employment Act.

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