Sexual harassment in the workplace seems to be a never ending problem. Previously, we looked at the issue with an eye toward preventative steps that can reduce your risk of claims. Considered to be a form of sex discrimination, it’s helpful to remember that sexual harassment can occur among individuals of any combination of gender. Regular training and a good anti-harassment policy are among the best practices you should follow.
Best practices reduce but don’t necessarily eliminate your risk. Simply put, stuff happens. So what should you do if you get a complaint of sexual harassment? How about if you become aware of a potential situation and there’s no formal complaint? What if an employee complains and then wants to take it back? The legal standard is whether you “knew or should have known” about a situation. So embark on an investigation whenever you realize a case of sexual harassment might exist.
An important rule of thumb is never procrastinate. In order to follow Equal Employment Opportunity Commission (EEOC) guidelines and demonstrate that you take such complaints seriously, respond to any allegation promptly. Unless the claim is truly harmless and minor or the harasser admits right away to the offense, you’ll need to investigate thoroughly. Here are some important steps to help you set up an effective investigation process:
1. Decide who the investigator should be. A trained HR professional is a wise choice. But if there is a close personal connection to either party or some other issue or reporting relationship that compromises impartiality, the investigation should be conducted by another trained individual or by outside legal counsel.
2. Never jump to conclusions. If an individual’s allegation initially sounds far-fetched, push aside any instinct to judge right away. Conversely, don’t condemn the accused either; it’s vital to remain objective and treat all parties with respect.
3. Assure the individuals involved that you will provide confidentiality and protect their privacy as much as possible; don’t make any guarantees, however, and let them know that information will be have to be shared on a need-to-know basis.
4. Consider the immediate pressure the alleged victim may be feeling and help alleviate it; but create a solution that does not create harm. For instance, separating the individuals by changing the alleged victim’s location or shift may be detrimental to him or her. Even when unintentional, such harm could result in a claim of retaliation. Instead, focus your solution on the alleged harasser; consider placing him or her on administrative leave.
5. Plan the investigation carefully. Develop a list of witnesses and other relevant sources of information including electronic evidence such as emails, letters, cards, phone records or computer history. These may be added to as you glean further information throughout the process.
6. Prepare questions in advance. Keep them open ended and try to frame them in a way that does not reveal confidential information, if possible. Interview the complainant, alleged harasser and witnesses. Your questions should cover: who, what, when, where, why and how. An excellent list of suggested questions for each type of interviewee, along with additional guidance, can be found on the EEOC website.
7. During all interviews, take careful notes. Never make promises or offer your opinion. Look for inconsistencies as well as further evidence and additional potential witnesses. It can be helpful to ask that the individual to put his or her version of what occurred in writing or at least sign off on your notes. A disparity between what the person says and what he or she is willing to put into writing could be a red flag and may help you assess credibility.
8. Interview individuals again if new information warrants.
9. Make your best determination of what happened and the appropriate action to take based on an assessment of credibility and review of all the evidence. Create a confidential, written report that documents your methods, all evidence and information gathered, conclusions drawn, and, if warranted, recommendations for appropriate remedial action. Any remedy should fit the situation and need not always be as serious as discipline or termination. Other actions might include counseling, training, changes to procedures or improvements in complaint mechanisms.
10. Stay in touch with both parties throughout the investigation. Let them know when it’s been completed and what your findings are. To protect privacy, you likely won’t reveal to the complainant the specifics of any disciplinary action. However, you should let him or her know if some action is being taken. Encourage the complainant to report any further instances of misconduct and regularly check in with him or her to follow up and make sure there are no further problems.
The concept of retaliation is a potential danger when dealing with complaints of sexual harassment or complaints of any workplace misconduct for that matter. Retaliation is any action that punishes an employee who engages in legally protected workplace activity. Employees who complain sometimes find they’re treated differently afterward, either by the alleged wrongdoer or others. Hostile treatment, including being ignored or shut out, can be considered a form of retaliation. Remind everyone involved in the situation that retaliation against any party or witness is strictly prohibited. Continue to follow up during the ensuing months or year to make sure it’s not happening in your workplace.
