This is the second of a 4-part posting concerning recommendations an employer should consider before, during, and after an employment investigation to resolve any lingering bitterness by employees.
Suppose an employee complains that her supervisor has exposed her to racial harassment. The investigation determines that while inappropriate remarks were likely made, the remarks do not qualify as legally cognizable harassment. A common mistake might be to conclude the investigation with a finding of "no harassment" and go back to business as usual. This is a mistake. If an investigation uncovers discord between certain employees, the employer should consider this an opportunity to restore respect and dignity to the workplace, through diversity, anger management, or harassment training. A workforce that gets along on a personal level is less likely to result in legal actions. Thus, even if a workplace investigation concludes that the accused employee should not be disciplined or terminated, the employer would be wise to consider whether any group trainings could be useful, both to avoid reoccurrence and to foster harmony.
Separation of Complainant and Accused?
Following a workplace investigation, an employer may believe that the complaining employee and accused employee should be separated to limit their interactions. Often, this means a job reassignment for one or both. While many employees see this as a harmless measure, employers should only proceed with the most extreme caution, preferably with advice of counsel; reassigning a complaining employee to a different job position following a complaint could be viewed as retaliation and should only be done if there are no other practical options. Even if you move a complaining employee to a position of equal pay and benefits, if there is reason to believe that the complaining employee’s new job is less desirable or less prestigious, then a court could construe such a reassignment as retaliation.
For example, in Burlington Northern & Santa Fe Railway Co v. White [PDF] , a female employee complained about a supervisor’s inappropriate comments about women. Following an investigation, the employer moved her to another position to separate her from the supervisor. The U.S. Supreme Court construed this move as retaliation, even though the new position had the same pay and benefits, because it could be seen as a less prestigious position. For this reason, employers should only reassign a complaining employee if he or she wants reassignment, or if the reassignment cannot be construed as retaliation. Further, the prior written consent of the complaining employee should be obtained, if possible.