One of the services we provide to clients is conducting effective, thorough, and prompt investigations of workplace issues. We have investigated just about every issue arising under workplace policies, from bullying to FMLA retaliation to financial irregularities. One of the most common issues we investigate is workplace discrimination, which includes sexual harassment, harassment based on other protected characteristics, physical or verbal harassment, and more. And something we see employers getting wrong over and over is a fundamental rule best summed up as: If You Know, You Know.

In one recent investigation, we heard from an employer who said an employee asked HR if they could report potential workplace harassment “off the record.” In another, an employee told management about sexual conduct at work, but when the manager asked if she wanted to file a “formal complaint,” she declined.  

The mistake both companies made was not taking immediate action to look into the reported conduct. Some employers have the well-intentioned belief that discrimination or harassment is an individual issue that the employee should have control in handling, when in fact it is very firmly a workplace issue that the company needs to own and manage. If you, as the employer, ask things like, “Do you want to file a formal complaint?” you are putting the employee in control of the situation, which might feel like the courteous thing to do — but that can have serious consequences for the company.

First, there’s the potential for liability. If you know about an issue of potential discrimination, harassment, or retaliation, you can be liable for failing to take prompt, effective action to investigate the conduct and take steps to prevent it from happening again. You don’t have to take our word for it: MCAD’s Guidelines on Sexual Harassment, for example, specify that “an employer should always investigate a complaint of sexual harassment as soon as practicable, even if an employee asks that it not investigate his or her claim.” These guidelines apply to all forms of workplace discrimination or harassment: as soon as an employee in a supervisory capacity knows about it, they must report it. Full stop.

Second, regardless of what the employee says in response to being asked whether they want to file a “formal complaint,” they do want you to do something — that’s why they came to you in the first place! So why might they suddenly hesitate or back off? Many employees are fearful of retaliation, whether from the company, the alleged perpetrator, or even their coworkers, who they may fear would ostracize them if it got out that they complained. The employee needs reassurance that they did the right thing coming to you and — sorry if we sound like a broken record — that the company will handle it from here.

One exercise that may help is to try substituting another complaint of alleged misconduct and ask yourself if you’d handle it the same way. For example, if an employee came to you “off the record” and said they knew their manager was stealing money from the company, would you honor their request to keep this just between the two of you? Of course not. If someone reported to you that an employee wasn’t following appropriate quality control procedures and a product may now be toxic, would you ask if they wanted to file a “formal complaint” in order to look into this? Absolutely not. And it shouldn’t be any different for a complaint of workplace discrimination.

So what should you do?

• Thank the employee for bringing this to your attention.
• Assure them that the company takes it seriously.
• Reassure them that the company does not allow retaliation for bringing forward a complaint.
• Let them know that you’ll need to follow up, either personally or by directing this to the appropriate channels within the company.
• If they ask you to keep it confidential, tell them that you will keep this as confidential as possible but that, depending on what they tell you, the company may have an obligation to look into it. 

The bottom line is: whether you are an HR professional, senior executive, or employee manager, if you are made aware of any kind of potential discrimination or harassment happening in your workplace, it doesn’t matter whether that knowledge was obtained from a formal complaint or from a casual conversation. Once you know, you know — and you’re obligated to take action.

Are you still unsure if you need to report an incident? Or do you think you may have a workplace issue that needs investigation? Click here to shoot us an email — we’d love to chat.