The central concern in most workplace harassment investigations is the employer’s potential liability to the complaining party. Appropriately so – there are decades of verdicts and decisions evidencing the potential liability for employers who do not address hostile environments and other workplace harassment situations.

But consider these scenarios: Hank and Harry are both accused of highly inappropriate communications towards Mary. Hank is Mary’s African-American co-worker. Mary is white, as is Mike – another co-worker who last year was accused of similar conduct and received a written counseling.

4 People, 1 Issue

Harry is the CEO. He is well known in the community and the industry and, of course, highly compensated. He is in the second year of a five year contract that may be terminated only for cause. Assume for purposes of this scenario that, while third parties report some borderline comments by both Hank and Harry, Mary’s statement is the only evidence of egregious harassment.

While Hank and Harry are in very different places in the organization, their reactions when confronted are similar – both are outraged. Each claims that Mary is a serial complainer, engages in loose workplace talk herself, and that, while he should perhaps have been more careful in how he responded to her, the complaint is Mary’s way of protecting her own job.

Hank indicates that he is going to seek legal counsel, and alludes to the situation with Mike and that it would be discrimination if he were to be subject to more serious discipline than Mike. Harry takes the offensive even more aggressively, stating that his professional reputation is at stake and that even asking other employees about Mary’s allegations against him will damage his professional and community standing.

2 Kinds of Liability

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Hank and Harry illustrate two potential types of liability the company may have towards the accused. I am separating Hank and Harry into separate “sub scenarios” because, while both illustrate the general point of potential liability to accused harassers, it does seem that the two scenarios (potential discrimination against Hank, defamation against Harry) tend to arise separately rather than with the same individual. Whether the accused has expressly raised liability scenarios as Hank and Harry have, the employer has to account for this possibility and take steps in investigations to protect itself.

Investigate to Reduce Risk

First, any accused – regardless of his apparent initial degree of culpability – needs to understand that the company rarely, if ever, has any reasonable choice under the law but to investigate any claim of workplace harassment. It is the only way to protect the company and, for an innocent accused, it is the best way to protect the accused as well. What constitutes an appropriate “investigation” will vary with each situation – airlifting in a team of lawyers is the exception and not the rule – but the company has to take steps so that it can demonstrate in any future legal proceeding that it fulfilled its obligation to respond promptly and appropriately.

Conducting Interviews

Indeed, all participants in the investigation should be advised, in writing, prior to their interviews, of the following:

• Allegations have been made and the company is required by law to investigate them.
• The company has made no conclusions as to the truth (or not) of the accusations and will not until it has gathered available information.
• The individual being interviewed is expected to keep the investigation confidential.  (Consult with counsel about how you communicate this in light of concerns expressed by the National Labor Relations Board.)
• The individual is required to share with the investigation all information requested and known to him/her.

(See HERE and HERE for sample pre-interview forms.) Documentation of these communications to every participant in the investigation – complainant, accused, third party witnesses – will provide a great degree of protection to the company against any claims by the accused that the company has rushed to judgment. The documentation will be particularly valuable against defamation claims – it will be very difficult to prove that the company spread false information about the accused if every witness has signed off on the above points.

Justify Adverse Action

With respect to potential discrimination claims, the outcome of the investigation will be of course be important. As with any adverse action, it is important for the employer to be able to demonstrate that it has proceeded thoughtfully and based on facts and not assumptions or improper biases. As with any adverse action taken against an individual in a legally protected class, the stakes of being able to make that demonstration are higher.

Finally, as with any adverse action taken against an individual in a legally protected class where there is an obvious point of comparison with an individual not in the protected class, if the employer treats the two individuals differently, it needs to be able to provide a business justification for the different treatment. In this case, if Mike and Hank are the subjects of similar accusations with similar evidence behind them, the steps taken towards Mike will be a critical point of reference. If the company is going to take more serious action against Hank, it needs to be able to explain the difference between the situations – convincingly.

Workplace harassment investigations present competing liabilities towards different employees probably more than any employment law situation. Balancing these sometimes competing potential concerns requires experience, judgment, and caution – and documentation that the company is exercising each of those.