While victims of workplace bullying may not currently have any legal recourse for bullying in and of itself, if the bullying is in any way related to a victim’s race, gender, national origin or religious affiliation, they do have legal recourse based on Title VII of the Civil Rights Act.
If a complaint was made to the business and no action was taken, it can open the business up to potential liability. This makes it in a business’ best interest to take accusations or complaints of bullying seriously. When an act of workplace bullying is reported there are three essential steps that must take place in order to conduct a proper investigation.
It is very important for employers to understand that no privilege is attached to workplace investigations unless they are conducted by legal counsel. Even then, privilege is very limited. What employers need to keep in mind is that it is important that they investigate any bullying complaints as a means of protecting themselves, but also that the same investigation could potentially expose them to liability. Remember that any evidence revealed by the investigation can be subpoenaed in a legal action.
Conducting an investigation in a timely fashion is critical in protecting against liability. The point is that at this stage, you don’t know what the investigation is going to reveal, but simply doing nothing will only increase your potential liability down the road. Once a complaint has been made, a thorough investigation needs to be conducted. It is also important at that time to ensure the alleged bully or bullies no longer have direct access to the complainant. In some cases, simply moving the complainant (if that is their wish) may solve the incident in their eyes, but a thorough investigation still needs to be conducted.
Regardless of what the investigation reveals, it is highly important for a business to carefully consider their response. If no evidence of bullying was found, there needs to be a response to the complainant, but the complainant should also not be penalized for reporting. Just because no evidence was found does not mean their report was not factual, simply that appropriate evidence could not be found. If evidence was found, it needs to be determined whether it could be legally actionable as harassment against a protected class. From there, you can determine the appropriate course of action.