When an employee complains to his or her employer about an alleged discriminatory employment practice, the employer should consider whether or not the complaint warrants an independent investigation conducted by a qualified outside investigator.  This series of blog posts will provide recent caselaw or statutory examples of when your workplace, school, or municipality should investigate.

Both Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Pennsylvania Human Relations Act (“PHRA”) prohibit discriminatory practices based on race, color, religion, sex, or national origin (the state law list is broader).  An employee claiming to be aggrieved by an alleged discriminatory practice must go through the administrative process first, either the Pennsylvania Human Relations Commission (PHRC) or the Equal Employment Opportunity Commission (EEOC). Both types of claims, if successful, expose an employer to substantial risks, including the imposition of steep fines, backpay, actual damages, and attorney’s fees.

Did you know? English-only policies are inherently tied to national origin. Although they may be enacted for a bona fide business reason, English-only policies can easily be applied in a selective and discriminatory manner. These policies are so burdensome that the EEOC presumes they violate Title VII.

 Did you know?  New regulations proposed by the PHRC this year would expand the definitions of “sex,” “race,” and “religious creed.” The proposed regulations were recently approved by the Independent Regulatory Review Commission just this month. It is PHRA’s position that these definitions codify existing law, so you can expect these definitions to be utilized even prior to their effective date.

When faced with a complaint or accusation, what should an employer do?  Take immediate action^[1].  While there are times when an internal investigation is fine, the benefits of an independent investigation are immeasurable. The job of an independent investigator is to gather facts from relevant people, policies, and data sources and analyze that information against the law to provide an objective evaluation of a situation and potential risks faced by an employer. These risks may be difficult for an “insider” to recognize due to internal influence, participation in the practice-at-issue, or proximity to the situation.

FOOTNOTES

^[1] The Association of Workplace Investigators, Inc. is a professional membership association whose focus is to promote and enhance the quality of impartial workplace investigations.  It publishes Guiding Principles for Conducting Workplace Investigations.