Handling Complaints Properly
Question: I am a regional HR representative. One of my job duties is to travel within my region to deliver workplace harassment and discrimination training to employees of my company. Every time I do these trainings, employees always take me aside to make complaints. We have a standard complaint procedure that is written in the employee handbook and posted in the facilities, and which contains a 1-800 number that we require our employees to follow in order to properly make a complaint with our organization. However, for 99 percent of the employees who complain to me at the training sessions I do, none of them have followed the standard complaint procedure. Instead, they are in effect usurping the standard complaint procedure when they make their complaint directly to me during one of my trainings. Is the company required to investigate the complaints that come in to me at the training sessions (outside of the standard procedure) or can we require the employee to first follow the standard complaint procedure before we address the complaint?
Answer: Yes and yes to both parts of your question. Employers should take special care to also investigate complaints whether they come through the formal complaint process (i.e., 1-800 phone number) or the "informal" -- yet reasonable process (i.e., complaint directly to HR or a supervisory/management level employee). Courts have held that a complaint procedure that requires supervisors to report only formal complaints of harassment is deficient. See Wilson v. Tulsa Junior College, 164 F.3d 534, 541-42 (10th Cir. 1998).
While it is not unreasonable to train employees to report all complaints of harassment and discrimination through your company's standard compliance procedure (the 1-800 number), and to expect them to do so, the employee's responsibility to formally report does not excuse you as a HR professional, from your general overriding duty to ensure that every such complaint -- regardless of how it is reported or comes to your or the company's knowledge -- is thoroughly investigated.
Failure to follow a standard complaint procedure
The U.S. Equal Opportunity Employment Commission's fact sheet on sexual harassment provides that employees "should use any employer complaint mechanism or grievance system available." EEOC Facts About Sexual Harassment, www.eeoc.gov/facts/fs-sex.html, June 27, 2002. Therefore, regardless of how a company becomes knowledgeable about a complaint of discrimination, it should act upon it.
Having a complaint procedure in place is important and, practically speaking, the most effective way to ensure that all complaints are brought to the company's attention. Inherent in a complaint procedure is the underlying assumption that before a complaint procedure is rolled out, your company has taken the time to make sure that the procedure is straightforward and easy to understand.
While it might seem strange for employees to sit through a harassment/discrimination training and then disregard the complaint procedure upon which they have been instructed, there are instances where informal complaints to impartial HR representatives such as you may seem reasonably necessary -- such as if an employee fears retaliation from a supervisor for using a formal grievance procedure.
If you determine that employees have been bypassing it, as your question indicates you have, then now is the time to speak with your employees about why they have not utilized the procedure. It is important for you to make sure that their lack of use is not due to a reasonable fear of retaliation, lack of understanding or lack of notice of the existence of the procedure.
Special Inherent HR Duties
Because management employees such as HR professionals are largely responsible for implementing policies to support a discrimination-free workplace, they are generally expected to have had training on and designation for receiving complaints. "The complaint procedure should provide accessible points of contact for the initial complaint. For example, if the employer has an office of human resources, one or more officials in that office could be authorized to take complaints." EEOC Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors; see also Phelan v. Cook County, 463 F.3d 773, 786 (7th Cir. 2006) (some instances of informal complaints put an employer on notice under a negligence standard). Therefore, courts expect HR professionals and supervisors to exercise a higher standard of care than regular "rank and file" employees to report and attempt to remedy acts of harassment and discrimination.
The duty to investigate arises once an employer has reasonable knowledge of wrongdoing, and it arises immediately. Therefore, if a management employee, such as yourself, fails to properly report and/or take appropriate steps to remedy discriminatory acts that you have been made aware of, know of, or should have reasonably known of, the failure will likely be imputed to your company and expose your company to liability. See my columns: Responsibility for the Actions of Others and The Ins and Outs of Investigations. See also Harassment Guidance, http://www.eeoc.gov/policy/docs/harassment.html.
Keisha-Ann G. Gray is senior counsel in the labor & employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate K.M. Zouhary assisted with this article.