Antidiscrimination Policies Alone Don’t Eliminate Employer Liability

March 3, 2020

A recent report issued by the National Guard Bureau’s Judge Advocate in the Office of Complex Investigations (NGB-JA/OCI) found the Wisconsin National Guard’s policies, procedures, and investigatory protocols for discrimination, sexual assault, and harassment complaints were noncompliant with federal law and regulation—and in various respects, were deficient or failing. Most seriously, the report found the Guard’s investigations of discrimination, assault, and harassment allegations were significantly deficient, and their accuracy and legality were compromised.

The NGB-JA/OCI’s report should serve as a stark reminder to public- and private-sector employers alike that without proper enforcement, even the strongest antidiscrimination policies may not protect you from liability. The risks associated with apathetic responses to discrimination complaints can largely be mitigated, however, by developing and implementing sound complaint response procedures, especially related to investigations.

Policies Plus Procedures Don’t Always Equal Compliance

The Wisconsin National Guard is subject to a robust legal and regulatory antidiscrimination framework. It’s a covered entity under Title VI of the Civil Rights Act of 1964 and is subject to the Department of Defense Military Equal Opportunity Program (DoD MEO).

Title VI’s antidiscrimination protections are similar to those found under Title VII and generally prohibit any program or activity receiving federal financial assistance from excluding from participation, denying benefits to, or discriminating against any person on the basis of race, color, or national origin. Title VI’s protections are applicable not only to the nation’s military installations but also to nearly every business that receives federal grants, loans, tax incentives, employee training grants, technical assistance, and other federal aid.

The DoD MEO prohibits discrimination against all military personnel and their family members because of race, color, religion, age, physical or mental disability, sex, or national origin. In addition, it provides a legal and command framework for investigating discrimination allegations, mandates equal employment opportunity training for HR officers, creates programs to prevent sexual harassment and other forms of discrimination, and establishes basic standards for discrimination complaint processing and resolution.

Despite the existence of those policies, the NGB-JA/OCI report found the Wisconsin National Guard:

  • Allowed discrimination and harassment complaint investigations to be overseen by individuals without the requisite skills, experience, and training;
  • Initiated investigations months after complaints were received (and in one case, not at all);
  • Conducted investigations untethered to any internal, written standard operating procedures;
  • Recommended postinvestigatory remedial action that was illegal or inaccurate; and
  • Failed to update its policies to reflect changes in federal law.

Not surprisingly, the significant investigatory shortcomings resulted in diminished trust in the organization’s systems. Victims reported they believed their discrimination or harassment reports weren’t taken seriously by the command leadership, and both victims and witnesses of unlawful behavior reported fearing retaliation or other reprisal for reporting such conduct.

Once such beliefs reach systemic levels among the work-force, an employer’s liability exposure is almost always also unacceptably high. All is not lost, however. Developing and implementing compliant antidiscrimination response systems will not only reduce your liability but also likely improve workforce morale.

Investigating, Responding to Complaints

Most employers would have no difficulty identifying the practices of the Wisconsin National Guard as dubious, if not outright unlawful. Some employer antidiscrimination legal responsibilities, however, are more subtle.

For instance, many of the laws prohibiting employment discrimination—Title VI, Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), for instance—actually require you to respond promptly to and investigate discrimination complaints, underscoring the importance of a well-defined investigatory framework.

The outline of such a framework will, at a minimum, ad-dress some basic tenets. Here are steps you should consider implementing as you develop your investigatory response systems:

  • Develop a complaint intake form or procedure. A complaint intake process should at the very least answer the questions “who, what, where, when, and why” with respect to the alleged discrimination or harassment.
  • Alert employees of your “preferred” complaint procedure. Don’t require an employee to follow a rigid complaint procedure, and be sure to identify several supervisory or HR assets to whom employees can make complaints.
  • Investigate every complaint promptly. Whether made formally or informally—including “com-plaints” in which an employee specifically states she is not making a complaint—each should be investigated.
  • Identify investigators. Consider whether the investigative team should include legal counsel and nonattorney employees and whether it should have more than one member.
  • Create an investigation plan. Identify key issues, witnesses, and potentially relevant documents or other information sources, such as e-mails, text messages, social media posts, and voicemails.
  • Document all steps of the investigation clearly. Put in writing the investigation process, the investigator’s interview notes, and other relevant information. Speculation or opinions should not be included in this documentation.
  • Prepare a report. It should summarize the findings of fact, conclusions, and remedial action taken (if any) and generally demonstrate you took the complaint seriously and conducted a prompt, neutral, good-faith investigation.

Bottom Line

The NGB-JA/OCI’s report is a good reminder that policies alone aren’t enough to protect you from liability under state and federal antidiscrimination and antiharassment laws. Developing and enforcing clear systems and conducting prompt, thorough investigations into complaints will not only promote consistent enforcement of workforce policies but also encourage risk mitigation and reduce employer liability in the long term.

This article, slightly modified to note recent updates, was featured in the February issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

Elizabeth Stephens
Elizabeth Stephens