As we discussed in our last edition, the first and most important step to avoid sexual harassment claims is to create a work environment where sexual harassment is not allowed. This can be done through a combination of written policies, employee and supervisor training, and management’s active and ongoing promotion of a healthy, respectful workplace. These steps will substantially reduce but can never totally eliminate the possibility of a sexual harassment claim. For that reason, it is also important to understand and implement good procedures for investigating and resolving harassment claims.
Like creating a successful work environment, creating a successful investigation and claims resolution procedure requires a combination of policy and implementation. An investigation policy is important to provide goals and guidance for reaching those goals. Rigorous enforcement of an investigation and resolution policy is necessary to prevent harassment claims from becoming expensive lawsuits. Good investigations and fair resolutions will also reinforce the message that harassment is not tolerated in your workplace.
The first step to creating an effective investigation and resolution policy is to review the Equal Employment Opportunity Commission’s guidelines on how to do an investigation. This guidance is available on the EEOC’s website at www.eeoc.gov/policy/docs/harassment.html. Use the EEOC’s guidance to create your company’s own written investigation procedure.
The next step is to identify employees within your organization who are well suited to conduct investigations. If possible, it is advisable to have both male and female investigators. Choose and train as many potential investigators as you have good candidates. If a complaint arises, you will want an investigator who is as far removed from the complainant as possible. Once chosen, investigators should be thoroughly trained in your company’s written procedure.
Finally, make it known to both employees and supervisors throughout your company that incidents and claims of sexual harassment should be reported promptly. Employees should report incidents to their immediate superior, but should also have a well-established alternative reporting path in case the alleged harasser is the employee’s supervisor. Supervisors should be trained to look for workplace behavior that may give rise to a claim and to report immediately both claims of harassment and inappropriate workplace behavior to management personnel responsible for dealing with such claims and incidents. Supervisors also should be trained not to dissuade claimants or to deal with sexual harassment claims or incidents themselves.
A situation may arise where an employee complains about inappropriate conduct, but asks their supervisor to keep the complaint confidential to avoid embarrassment or a negative reaction from other employees. Supervisors should be trained to explain to employees in such situations that the company is legally bound to investigate all complaints of harassment. The supervisor can tell the employee that the company will do its best to keep the complaint as confidential as possible while still doing a thorough investigation. All employees should be made to understand that the company will not tolerate any negative reaction toward a complaining employee.
Finally, management personnel responsible for resolving incidents and complaints should be trained to act fairly based on the facts elicited during an investigation. Discipline, whether it be termination, demotion, or reassignment should be administered consistently regardless of who is found to be at fault and what that person’s position may be within the company. To obtain this consistency, it is a good idea to have the same manager or management team deal with all incidents and claims of harassment.
Incidents and claims of harassment should be investigated immediately. Any delay in investigating complaints may later be viewed as an attempt to dissuade the complainant from pursuing his or her claim. Keep in mind that any complaint may eventually lead to litigation. The best defense is to conduct a timely investigation in accordance with EEOC guidelines and without pre-judging any complaint regardless of who is involved.
Management personnel responsible for receiving complaints should, if possible, choose an investigator of the same sex as the complainant and request the investigator to do a thorough investigation as quickly as possible. These are potentially competing objectives. That is why it is important to have well trained investigators who know what is necessary and what is not. What is necessary is for the investigator to interview the claimant, the alleged perpetrator, and all other employees who have first-hand knowledge. This could include ex-employees and independent contractors or consultants. On a construction site, it might include employees of other contractors or subcontractors working at a project site.
Investigators should avoid leading questions and focus on gathering facts—who, what, when, where. Investigators should be neutral and non-judgmental—persistent in obtaining facts without appearing to cross-examine or otherwise intimidate the complainant or other witnesses. Investigators should avoid offering opinions on the facts they elicit and keep a careful record of their investigation documenting facts as they are found. Since records may be discoverable in any subsequent litigation, they should be as objective as possible. Don’t allow discoverability to deter your company from both doing and documenting a careful investigation. A lack of records may be more damaging than anything contained in the record.
While the investigation is ongoing, responsible management should determine whether interim measures should be implemented to alleviate the circumstances giving rise to the incident. This may likely involve separating the complainant or victim from the alleged perpetrator of the incident or complaint. This should be done in a way that does not appear to punish or increase the workload of anyone involved before the investigation is complete.
Once the investigation is concluded, the responsible manager or managers must decide who, if anyone, is at fault and what actions should be taken to punish inappropriate behavior and deter such behavior in the future. No one should suffer retaliation for initiating a complaint or giving factual testimony during an investigation. Whatever action is taken should be fair and at the same time reinforce the company’s position that inappropriate workplace behavior will not be tolerated.
Balanced handling of incidents and claims of harassment is challenging. It requires well trained employees and a carefully thought out procedure. The time and expense to obtain this end should be more than repaid by a more productive workforce, fewer or no claims, and less exposure to expensive litigation.