HR folks – Have you ever had an employee tell you that he or she is being unlawfully harassed by a co-worker, but then begged you to keep the complaint confidential? Most often, employees ask their employers not to investigate their concerns because of embarrassment or fear of retribution. Employers who honor such employee confidentiality requests, however, do so at their own peril.
When an employee claims unlawful harassment, three common employer reactions may occur. First, HR will agree with an employee’s request to keep the entire complaint confidential and not investigate. Second, HR may decide to investigate anyway, but promise the employee “complete” confidentiality during the investigation. Third, if the investigation determines that the employee was unlawfully harassed, HR may decide to discipline the harasser and not notify the employee of the disciplinary decision. Are any of these decisions correct? Short answer- No.
Let’s tackle the first issue. When a court determines whether to hold an employer liable for the actions of an employee’s coworker, it will examine whether the employer knew or should have known about the alleged harassment but failed to respond. If a supervisor is aware of the harassment, that person’s knowledge may be attributed to the employer. Therefore, once you receive notice of potential unlawful harassment, you have an obligation to investigate the allegations and take appropriate disciplinary action. The fact that the employee asked you to keep the complaint confidential does not outweigh your legal obligation to maintain a workplace free from all forms of unlawful harassment. Moreover, if you fail to timely act, you might allow an employee to pursue an otherwise time-barred harassment complaint.
What about the second issue – can you promise the employee, “Don’t worry, we will investigate your concerns, but we guarantee you complete confidentiality?” Simple answer- NO! While you should conduct an investigation discreetly, you should inform the complaining employee that you will maintain confidentiality to the greatest extent possible, but cannot guarantee “complete” confidentiality because certain disclosures may be necessary in order to conduct a thorough investigation.
Lastly, if the investigation determines that the employee was subjected to unlawful harassment, you are obligated to take appropriate disciplinary action against the harasser. Is the complaining employee entitled to know the specific disciplinary action administered? No, but it is prudent to tell the employee that the company has taken appropriate disciplinary action. In certain circumstances, HR may or may not want to disclose the details of another employee’s disciplinary record.