In part one of this series, Demystifying “Hostile Work Environment” Complaints, we explained the legal definition of what constitutes a hostile work environment and listed benefits to investigating such complaints, even if the alleged behavior does not meet the legal definition of a hostile work environment. In part two, Preventing Hostile Work Environment Complaints, we discussed steps employers can take to prevent a hostile work environment. In part three of our blog series, we explain how to investigate a hostile work environment complaint.

Despite an employer’s best efforts, employee complaints inevitably still arise. When this happens, it’s crucial to address the complaint promptly and effectively to prevent escalation and demonstrate the company’s commitment to a safe work environment. Here are some steps that that the employer can take, when faced with a hostile work environment complaint: 

1. Promptly Investigate: Take all complaints seriously and conduct prompt, impartial, and thorough investigations.

2. Engage an Internal or External Investigator: The employer must choose whether to have their internal HR (if applicable) investigate the complaint or whether to hire an external investigator. An external investigator is often the best choice when the complaint either: (1) involves the leadership of the organization—making it difficult for internal HR to feel comfortable in neutrally handling the investigation, (2) involves members of HR itself—making it a conflict for HR to investigate, or (3) when the organization simply wants an outside, neutral third party to investigate to ensure fairness and neutrality.

3. Interview the Complainant and Determine the Specifics of the Complaint: The investigator should, when possible, first interview the complaining witness(es) and gather as much information and specific examples as possible. Especially with a hostile work environment complaint, it is crucial to obtain specific examples of the alleged wrongful behavior.

4. Interview Other Witnesses with Relevant Information: Once the investigator has gathered as much information as possible from the complaining witness, other witnesses (usually current employees) who interact with the complainant and respondent on a regular basis should likely be interviewed (depending on the specifics of the situation). These third-party witnesses often have invaluable insight into whether the alleged offending behavior occurred (or not), and whether they too took offense to such behavior.

5. Interview the Respondent: Typically, the investigator will interview the respondent last. In this interview, the investigator should probe: (1) whether the respondent agrees that they engaged in the alleged behavior, and (2) what the respondent’s state of mind was when engaging in the behavior (if applicable).

6. Reach Findings of Fact: Whether internal or external, the investigator’s role is to reach findings of fact, based on the preponderance of the evidence. These findings should be promptly shared with the employer (and their counsel, if applicable) so that the employer can evaluate their next steps. As discussed in part one of this blog series, the behavior may be perceived as “hostile” to an employee, but if the behavior is not directed at the employee because of their membership in a protected class, it does not meet the legal definition of “hostile work environment.” Nevertheless, it is valuable to investigate complaints, even if the behavior does not rise to the legal definition of a “hostile work environment.” See our previous blog’s discussion of why investigating is still worthwhile.

7. Take Appropriate Follow-Up Action: If the investigation confirms misconduct, the employer should take immediate and appropriate action based on the severity of the behavior. Sometimes this means terminating the respondent, other times it involves different forms of discipline or restructuring employee roles. Employers should speak with employment counsel (separate from the investigator) to determine the appropriate remedial measures, if any, following an investigation.

8. Maintain Confidentiality to the Greatest Extent Possible: During the course of the investigation, the employer should protect the confidentiality of all parties involved in the complaint to the greatest extent possible–sharing information about the investigation on a “need to know” basis only.

9. Provide Support to Affected Employees: Offer support to affected employees, such as offering to meet with HR and/or making temporary adjustments to the employees’ work situation.

Maier Law Group regularly assists employers with both the prevention steps discussed above, and of course, with workplace investigations. Please reach out to us if we can assist! MLG’s attorneys find great joy in helping employers foster positive, respectful, and inclusive workplaces.

Author: Emily Harrington, Associate.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact Maier Law Group directly.