Human Resources — The Legal Duty to Investigate and Take Corrective Action
Good Human Resources [“H.R.”] people do good work. Many H.R. professionals are just like you and I, trying to provide the best service they can. Many are overworked and undertrained. But this article indulges in a healthy measure of cynicism based on my 28 years of representing employees who thought they would get help or protection by going to Human Resources.
Without getting technical, employers have a legal duty to respond promptly, thoroughly, and adequately to a complaint of discrimination or harassment at work. This same duty doesn’t apply to vanilla bully-ism or general violations of company policy. The point is that the Human Resources duty to respond to an internal discrimination complaint is not optional. If the investigation reveals merit to your complaint, the employer must take corrective action. The employer by law must also refrain from retaliating against you because of your complaint.
Human Resources — A Cynical View
The following reasons for why H.R. doesn’t help are admittedly cynical but cut close enough to reality. Use the list as a reality check for what may be happening (or what already happened) at your Company.
1. You the employee don’t smack the H.R. person with bold, clear, unmistakable terms spelling out: ‘This is discrimination!’ Even if a reasonable person trained in H.R. would understand your statement of a double standard to raise an issue of illegal discrimination, this H.R. person asserts during a later litigation: “The employee didn’t complain of discrimination.”
2. You the employee think the problem will just go away. How long will you think that?
3. H.R. leads you to believe in form over substance: a smile and reassurance is not an adequate practical or legal response. [The duty to investigate an internal complaint of discrimination is immediate.]
4. When H.R. tells you “We’ll look into this,” you interpret this statement to mean something will actually be done, and so do not follow up.
5. Your H.R. person is stretched in multiple tasks, including recruitment, compensation, revising policies, maintaining personnel files, and training. Your discrimination complaint falls off the list.
6. Your H.R. person has little training in H.R., lacks formal education in the field, does not belong to professional continuing education groups, and has held the position for less than a year.
7. Your H.R. person does not know how to conduct a complete, thorough or fair investigation. She likewise does not grasp the need for an independent investigator who has the requisite training, experience, and impartiality.
8. Your H.R. person is afraid of losing her job, promotion, or status if she “tells it like it is” to upper management.
9. Your H.R. person sees his primary obligation to be the protection of the company when responding to your complaint of discrimination;
10. When you are told the “investigation” is complete, what that means is that the investigation has been created to defend the company against your frivolous and outrageous charges. You will not be allowed to see the document until and unless it is subpoenaed in a later litigation.
11. When H.R. does share some of the results of the investigation, the sharing is cryptic, general, and mostly uninformative. You fail to ask questions because you didn’t think that would be necessary. You forget to ask for confirmation that she reviewed documents or spoke to witnesses, or confirmed your timelines of events.
12. The conference to review your complaint and investigation produces a shock: it is you who is the problem, and your manager justifiably has been finding fault with your work.
13. The degree of good faith by H.R. is inversely proportional to the executive level of the manager being accused by the employee.
14. You thought H.R. was on your side.
15. Your manager, unchecked by a warning from H.R. or his managers, undertakes a campaign of retaliation. You receive more of the same abuse, only intensified.
16. You fail to complain of the resulting retaliation for the same reasons you failed to complain of the discrimination, and because you have lost hope based on your last foray.
17. You didn’t grasp H.R. was seeking legal counsel behind the scenes during the time it was communicating with you. You realize only belatedly the company’s responses were scripted.
Human Resources — How to Respond to the Inadequate Response
The preceding list suggests some actions you can take to provide for your own protection. Write out your complaint, and think of it as a legal document that will be later scrutinized. Be factual and as clear as possible in the drafting. That goal may require you to diary events as they occur, but be aware the diary itself is potentially discoverable in litigation. Keep the diary away from work and off company servers.
Make clear in the complaint that you believe your manager is discriminating against you because of your age, race, disability, gender, or other like protected category. Just to state you feel there is a double standard may not be enough to trigger the duty to investigate.
Before drafting your complaint, learn your legal rights. Research the anti-discrimination and anti-harassment laws online. The state and federal governments provide online guidance, for example. In California, the Department of Fair Employment and Housing serves this purpose. Go to: D.F.E.H If you are not working in California, check your state’s human rights website, or visit the federal website, E.E.O.C.
Don’t be intimidated by the question: “Why do you think you were discriminated against?” when the investigator inevitably poses the question, in whatever form. You do not have to present evidence of a direct discriminatory statement of bias against you. Most legal cases of discrimination rely on indirect evidence. That is, you state facts showing different treatment of you and persons who are younger, of a different sexual orientation, without disability, of another race, religion, national origin, or other “protected category.” You of course should be prepared to present facts showing particular hostility from your manager. Even if he or she generally is hostile to employees, he may be particularly focused on you because of your protected status.
You may ask for, but not require, an independent internal employer investigation. If you do, document the request, and the denial of the request. Set reminders to follow up with Human Resources for status reports. Ask for a copy of the investigation, although do not expect to receive it. When denied a copy, ask for a redacted summary (omitting witness identifying information). Document any denial of receiving a requested summary.
After your internal discrimination complaint, express your concerns to Human Resources about retaliation in writing as well. Document for yourself any suspected instances of retaliatory behavior you believe to be linked to your complaint.
Be aware that your manager’s discrimination is often unconscious to her as a motivation for bad performance reviews. The law does not concern itself with the unconscious state of the manager however. Instead, the law follows a practical and objective test: have you been treated differently than persons outside your “protected category,” and are the reasons for your lay-off, demotion, or firing exposed as lies?
Focus your attention therefore on the lies behind your negative performance reviews and/or “warnings.” That requires you to document your actual performance to be compared to your manager’s statements. When Human Resources informs you there was no finding of discrimination, but instead that the findings indicate your poor performance, be ready with the facts to rebut that false conclusion. Also, even if you do not meet particular performance standards, do your best to discover how your colleagues are being ranked by the same standards. If they are not being disciplined for substandard work, and if they are outside your “protected category,” you may be able to prove illegal discrimination.
At this early stage however, an internal employer investigation is not a court proceeding requiring levels of proof. Just do your best to show the double standard, and that the work criticisms are bogus or exaggerated.
Finally, be proactive in seeking legal consultation with an employment attorney who focuses on representing employees. The best time for to obtain this counsel is often before you are laid-off, demoted, or fired.