Guidelines to Promote Ethical Decision-making in the Workplace

In my last post I discussed a model for ethical decision making, which can be applied to the ethical analysis of challenging issues in the HR function. Today I deal with the ethics of handling discrimination and harassment complaints.

Most employers are anxious when faced with discrimination and harassment complaints because such complaints can lead to workplace tension, government investigations, and even costly legal battles. If the complaint is mishandled, even unintentionally, an employer may unwittingly put itself out of business.

I recently read The Essential Guide to Workplace Investigations by Lisa Guerin (Nolo) and found useful advice on dealing with harassment and discrimination complaints in the workplace. If you work in HR, her advice should be carefully considered when acting on complaints.

• Keep an open mind. Many employers have a hard time believing that discrimination or harassment could be happening right under their noses. As a result, they often fail to investigate complaints, assuming that they could not possibly be true. Unfortunately, failing to investigate a complaint is a surefire way to land in court. Investigate every complaint you receive. Don't come to any conclusions until your investigation is complete.
• Treat the complainer with respect and compassion. Employees often find it extremely difficult to complain about discrimination or harassment. They feel vulnerable and afraid. This can have an impact on the quality of their work, and it can also lead them to seek outside assistance from lawyers. When an employee comes to you with concerns about discrimination or harassment, be understanding. An employee who sees that you are taking the problem seriously is less likely to escalate the issue to a government agency or to court.
• Don't shoot the messenger. You may be tempted to become angry at the complaining employee for the fact that you must now deal with the specter of discrimination and harassment in your business. But don't forget that the complaining employee is the victim and not the cause of the problem. If you allow yourself to become angry at the employee, you open yourself up to claims of illegal retaliation. You also run the risk of polarizing your workplace, damaging morale, and lowering productivity.
• Don't retaliate. It is against the law to punish someone for complaining about discrimination or harassment. The most obvious forms of retaliation are termination, discipline, demotion, pay cuts, or threats to do any of these things. Subtler forms of retaliation may include changing the shift hours or work area of the accuser, changing the accuser's job responsibilities, or isolating the accuser by leaving her out of meetings and other office functions.
• Follow established procedures. If you have an employee handbook or other documented policies relating to discrimination and harassment, follow those policies. Don't open yourself up to claims of unfair treatment by bending the rules. Also, do some research on the law of discrimination and harassment: what it is, how it is proven in court, and what your responsibilities are as an employer.
• Interview the people involved. Start by talking to the person who complained. Find out exactly what the employee's concerns are. Get details: what was said or done, when, and where, and who else was there. Take notes of your interviews. Then talk to any employees accused of discrimination or harassment. Get details from them as well. Be sure to interview any witnesses who may have seen or heard any problematic conduct. Gather any relevant documents.
• Look for corroboration or contradiction. Discrimination and harassment complaints often offer the classic example of "he said/she said." Often, the accuser and accused offer different versions of incidents, leaving you with conflicting stories. You may have to turn to other sources for clues. For example, schedules, time cards, and other attendance records (for trainings, meetings, and so on) may help you determine whether each party was where he or she claimed to be. Witnesses -- including coworkers, vendors, customers, or friends -- may have seen part of an incident. And, in some cases, documents will prove one side right.
• Keep it confidential. A discrimination complaint can polarize a workplace. Workers will likely side with either the complaining employee or the accused employee, and the rumor mill will start working overtime. Worse, if too many details about the complaint are leaked, you may be accused of damaging the reputation of the alleged victim or alleged harasser -- and get slapped with a defamation lawsuit. Avoid these problems by insisting on confidentiality and practicing it in your investigation.
• Write it all down. Take notes during your interviews. Before the interview is over, go back through your notes with the interviewee to make sure you got it right. Keep a journal of your investigation. Write down the steps you have taken to get at the truth, including dates and places of interviews you have conducted. Write down the names of all documents you have reviewed. Document any action taken against the accused or the reasons for deciding not to take action. This written record will protect you later if your employee claims that you ignored a complaint or conducted a one-sided investigation.

When investigating complaints of discrimination and harassment, it is a good idea to take decisive action once the investigation is complete. Once you have gathered all the information available, sit down and decide what you think really happened. If you conclude that some form of discrimination or harassment occurred, figure out how to discipline the wrongdoer(s) appropriately. Termination may be warranted for more egregious kinds of discrimination and harassment, such as threats, stalking, or repeated and unwanted physical contact. Lesser discipline, such as a warning or counseling, might be in order if the harassment arises out of a misunderstanding (a blundered attempt to ask a coworker on a date, for example). Once you have decided on an appropriate action, take it quickly, document it, and notify the accuser.

The HR function is chock-full of ethical issues that revolve around fair treatment and respecting the rights of employees. An ethical framework is needed to thoroughly investigate claims. The above is the first step in working through the process. My advice is prior to making a final decision and taking action, ask yourself: How would I feel if my decision were to be on the front pages of the newspaper? Would I be proud to defend it or feel defensive of it? In other words, trust your gut and apply your conscience to what may be sticky ethical issues which, if handled wrongly, may lead the entity down the proverbial “ethical slippery slope” where there is no turning back from the decision made and action taken.

Blog posted by Dr. Steven Mintz, aka Ethics Sage, on March 10, 2016. Professor Mintz is on the faculty of the Orfalea College of Business at Cal Poly San Luis Obispo. He also blogs at: www.ethicssage.com.