The Alaska State Commission for Human Rights (ASCHR) has had a long-standing practice of forbidding employers from having a representative present when an ASCHR investigator interviewed non-managerial employees regarding discrimination complaints, but allowing the company’s attorney to sit in when supervisors or manager are interviewed.
In a just issued opinion (Alaska State Commission for Human Rights v. Anderson, Opinion No. 7280, August 31, 2018), the Alaska Supreme Court upheld this past practice even though not specifically authorized by law. The court’s decision is based largely on the statutory requirements that investigations must be kept confidential. The court reasoned that having a third party present in an “informal interview” might chill the witness from providing complete, truthful information.
From the employer’s perspective, the goal of participating in the investigative interview should not be to chill the witness, but rather to know precisely what conduct is being alleged. This permits the employer to resolve complaints quickly and informally if it appears discriminatory conduct may have occurred, or to gather appropriate factual information to address allegations of which the employer might otherwise be unaware. The court’s ruling, however, evidences a judicial concern that confidentiality requirements outweigh the employer’s need to know.
Three Key Takeaways From This Decision:
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