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Employers can’t guarantee absolute nondisclosure of an alleged harassment victim’s identity. Although confidentiality should be kept whenever possible, generally the alleged harasser must be notified of the complaint made against him because he has a right to respond to it. And, an employer can’t conduct an effective investigation without revealing certain information.
Need to Know Basis
Employers should investigate allegations of workplace harassment promptly and in as a discreet a manner as possible so that the privacy of the people involved is protected. While absolute confidentiality is not possible, only those with a need to know should be made aware of the complaint.
Employers should make clear to employees that they’ll protect the confidentiality of harassment allegations to the extent possible. Employers can do this in the following ways:
- Share information only with those who need to know about it
- Keep all records relating to harassment complaints confidential
Conflict between Confidentiality and Investigation
Where a full and fair investigation is required, some confidentiality will be lost, and this fact should be made clear to anyone who makes a complaint for harassment. A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may arise if an employee informs a supervisor about alleged harassment, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment.
A policy of always identifying the accuser, or telling the accused the exact nature and source of the complaint, probably isn’t a good policy. Employers must use their discretion in investigating a claim, balancing the complainant’s request for confidentiality against the company’s desire to find out what happened.
Investigations sometimes result in retaliation (violence, threats of violence, hostile work environment, poor evaluations and so forth) despite the employer’s assurances that such conduct won’t be tolerated. When employees learn someone has complained, they often criticize or ostracize the complainant. Employers can’t allow such conduct. There are many cases in which an employer or supervisor is cleared of harassment charges but is liable and has to pay damages for the retaliatory misconduct of its personnel. In such cases, the employer can sometimes avoid the retaliation by not disclosing the identity of the complainant or specifics of the complaint. In this way, the likelihood of retaliation is lowered.
Victims who know that their complaints will not be kept confidential are less likely to complain or report incidents in fear of retaliation. This allows harassers to continue without being challenged.
Questions for Your Attorney
- I told my human resources department that a co-worker was harassing me, but to the best of my knowledge, there’s been no investigation of my complaint. Doesn’t my employer have to do something? How long can it wait before looking into the problem?
- Do I need to file a complaint with the Equal Employment Opportunity Commission before I can file a lawsuit against my employer for harassment and retaliation?
- I’m pretty sure that a co-worker is sending me unwanted and offensive e-mail messages, but he’s using a private e-mail address, not his work address. I’ve complained to my boss, but she says there’s nothing she can do because he’s not using company equipment and isn’t bothering me at work. Is that right? Doesn’t my employer have to investigate this?