Categories: HR & Employment Law | by admin

Imagine this. Upon arriving at work, you are greeted by an upset employee who tells you that they have experienced sexual harassment from another employee. The story is very detailed and emotional. What do you do and what should your company do?

 

Take careful, deliberate and appropriate action.

The best plan is to prevent sexual harassment in the workplace. In the event that it happens, regardless of your efforts to prevent it, you must take immediate and appropriate steps to limit exposure or liability to your organization, all while you keep the trust of your employees.  It is important not to make assumptions about the credibility of the complaint. You should take all concerns seriously and afford them equal treatment, no matter how minor or trivial they may seem at first and regardless how you may feel about the person making the complaint.

  • Report the complaint promptly. If you are not the HR person or the correct HR person or someone who is defined as the investigator at your organization, assume the responsibility to report the issue to appropriate personnel immediately.
  • Take remedial action as you learn details. Depending upon the severity of the allegations, this may mean that the accused must be removed from the workplace until the investigation is complete. A decision to separate or remove the accuser or victim can be seen as retaliatory.
  • Initiate an investigation immediately. Your workplace harassment prevention policy should include the right steps and questions to ask when interviewing all involved parties. This includes the accuser, the accused and anyone who may have witnessed any of the alleged harassment. It is important to avoid delays in investigating.
  • Document everything. As in all matters HR-related, documentation is important. The investigator and the organization should keep all of the information associated with the investigation confidential and in a separate investigative file, with the exception of resultant disciplinary action (if any), which should be put in the respective employee’s personnel file.
  • Take whatever action is warranted by the results of your investigation and consistent with your company policy and practice. If wrongdoing is found to have occurred, this may mean that the accused is let go or issued some other disciplinary action.  If there is no evidence of any policy violation or other misconduct, you are not required to take disciplinary action.

 

Follow through and remain trustworthy.

Your employees trust you enough to depend on you for their livelihood. Being worthy of that trust includes taking complaints seriously, not making assumptions about what did or did not occur without a fair, prompt and impartial investigation, taking action to remedy any wrongdoing that may be found to have occurred, and making any adjustments needed to avoid similar situations in the future. Understanding the accusations fully, including the perspective and recollections of each involved party and any witnesses, can assist the employer in securing the details needed to determine the credibility of the accusation.

Allegations that are found to have merit can have varying impacts in liability to your organization depending upon whether they involve peer employees versus those in a supervisory role. Employee actions that take advantage of, or fail to take advantage of, preventive or corrective action by the employer can also impact liability to the organization. An employee shows trust in the organization by reporting sexual harassment.  The employer should show it trusts its employees in return by following through with a complete investigation.

False allegations can really only impact your organization negatively. The question is, how much damage would that cause?  If you remained impartial, the answer could be minimal. If so, you can rebuild the trust in the organization easily.

 

Nobody said this would be easy.

Setting the plan in motion to investigate all complaints seems easy enough. You just put a policy in place and it will happen, right? Probably not. Your supervisors, managers and all employees will need some training to understand what constitutes sexual harassment and how to prevent it, and how to report and address it if it occurs anyway.

The judgement part is a little more difficult. It is human nature to try to deduce the truth from any story we hear. Absent an investigation policy and procedure, it will be nearly impossible to treat all parties of an accusation fairly and impartially. This is where EEOC guidelines can be exceptionally helpful. The guidelines provided by the EEOC include specific questions to be asked of all parties during the investigation. The EEOC also provides guidance to help determine credibility of interviewed parties and steps the employer can take during the investigation as precautions. The EEOC pays particular attention to helping small employers understand their obligations as it pertains to prevention and any complaint of harassment.

How you handle a complaint of sexual harassment or any harassment can potentially change your organization in a good way or a bad one. A prompt, impartial, fair and well-run investigation will show your employees that you can be trusted in tough situations to remain professional and to ensure the workplace is a safe and satisfying place to work.  In a poorly-run investigation, you risk losing the trust of your employees, whether the individuals involved feel vindicated or not. Either way, your company may face legal troubles, including an EEOC complaint and lawsuit, as well as employee relations and morale issues.  Whether you acted on plans and procedures already in place and how you handled the investigation can affect your ability to defend such claims and can also impact the outcomes. The real test is to ask yourself if you investigated and documented in a way that helps you make a solid determination of the complaint, and without having made any premature judgments on whether the story was hard to believe or no surprise at all.

 

Do the right thing.

Ultimately, organizations need to do the right thing to keep morale as good as it can be in these situations. Organizations also need to understand that their actions throughout will be viewed in a positive or negative light, depending on how they conducted themselves.