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You can insist on investigation confidentiality

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

Water-cooler talk about alleged workplace discrimination or harassment can poison a workplace. As employees exchange stories, the alleged discrimination or harassment may become exaggerated. Plus, employees busy debating the latest allegations aren’t doing what they are supposed to be doing—working.

Make it a policy to keep it confidential when conducting internal investigations into discrimination or harassment—at least until you have finished the investigation. That way, rumors and exaggerated claims won’t influence other employees who haven’t yet told investigators their side of the story.

Employers that terminate employees for violating that confidentiality needn’t worry that doing so is retaliation, at least according to a recent 11th Circuit Court of Appeals decision.

Recent case: Natika Gant complained to HR that an evening manager at the grocery store where she was a customer service manager told her he couldn’t “stand ghetto black n_____s.” She also reported that the same manager would ignore white customers who were shoplifting while hounding black customers who weren’t doing anything wrong.

The store had a strict policy that required confidential investigations. When it learned that Gant had discussed her complaint with two other managers, she was fired for violating the confidentiality rule.

Gant sued, alleging retaliation.

But the court said she had no evidence the company had any reason for firing her other than breach of confidentiality. It dismissed her case. (Gant v. Kash’n Karry Food, No. 09-14063, 11th Cir., 2010)

Final note: Always have an attorney review any discharge of an employee who has filed a discrimination complaint. Also note that employers may violate the National Labor Relations Act if they try to quash discussions about benefits, pay and conditions of employment.

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