Why do employers fail to investigate? asks Denise Kay, Esq. “The number one reason is that they don’t know what to do. Employers are especially fearful when agencies are involved.”
Typical reasons that managers fail to even start an investigation, says Kay, are:
- They think it’s cut and dried, so there’s no need for an investigation.
- They think that maybe no one noticed.
- They don’t know what to do.
Kay, who is SPHR certified, is president of Employment Practices Solutions, Inc., in Lakewood, Colorado. Her remarks came at a recent Society for Human Resource Management Legal and Legislative Conference in Washington, DC.
EEOC charges remain at unprecedented highs, with increased complaints of religion, national origin, and disability discrimination and harassment, notes Kay.
What Are the Risks of Bad (or Nonexistent) Investigations?
First of all, there is financial risk, says Kay. During one recent period, median damage awards ranged from $114,000 to $154,000. The numbers seem low primarily because of caps, Kay says.
But that’s not the whole picture, she adds. More than 20 percent of all discrimination verdicts handed down were valued at more than $1 million. This is because of added amounts for retaliation, attorney’s fees, etc., Kay says.
What Else Do You Have to Lose?
Financial loss is not the only concern, Kay says. Also consider:
- Reputation—Negative headlines are no help.
- Investor confidence—Investors are taking a stricter look at ethical issues.
- Market success—Consumers avoid companies with ethics issues.
- Staffing—You won’t be an employer of choice any longer.
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Ethical Dilemma: To Investigate or Not to Investigate
Sue has a propensity for complaining, Kay says. She seems perpetually uptight and upset about one thing or another. First it was her cube location, then the smell in the lunchroom, then the transfer to the east wing. You’ve about had it.
But now she’s coming in with concerns regarding her new boss. Sue’s boss is the protégé of the company CEO. He’s being groomed for an executive position. Sue says he’s a male chauvinist who is argumentative and not giving her a fair deal. Today, she determined that he is favoring the male colleagues in her department and notes that he asked her if she had any kids at home.
She says she’s had it, and she shows up at your door to complain. For maybe the 20th time. Do you investigate?
You have to investigate, Kay says. The allegations could be true. If you fail to investigate:
- You can defeat the “Faragher/Ellerth Defense.”
- Your objectivity can be questioned.
- Trust is eroded.
- Fair and equal treatment will be compromised.
Do We NEED an Investigation?
If you are unsure about whether to investigate, ask the following, Kay suggests:
- Does business policy mandate an investigation?
- How serious is the complaint?
- Who is implicated?
- Who is complaining?
- Is there or has there been more than one complaint?
- Can you see litigation looming on the horizon?
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Courts generally indicate that notice of complaints related to the following should be investigated:
- Harassment
- Discrimination
- Theft
- Substance abuse
- Violence
- Internet/e-mail usage
- Insubordination
- Ethics
- Financial
Remember, says Kay, a complaint can be any one of the following that is reported to anyone in Human Resources or anyone who is in a management/supervisory level or higher:
- A rumor
- Confidentially imparted information
- Informally reported information
- Formally reported information
Don’t force the person reporting the complaint to put it into writing, Kay says.
In tomorrow’s CED, more of Kay’s tips on wage and hour issues, plus an introduction to a unique program for small, or even one-person, HR departments.
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