Recent events involving powerful figures from the media, Hollywood, and Silicon Valley have created a renewed focus on sexual harassment claims. From former Fox News political commentator Billy O’Reilly to former Uber CEO Travis Kalanick, and even Hollywood’s Harvey Weinstein, 2017 has been a year in which companies have been forced to re-evaluate their internal culture and policies regarding sexual harassment claims and investigations. In light of the current landscape, all employers should do the same in order to limit their risk of liability for unlawful harassment and discrimination.
Starting with the basics, every employer should establish a written policy prohibiting unlawful harassment and discrimination in the workplace. To be effective, the policy must cover all forms of harassment and it must include a user-friendly internal complaint procedure. The anti-harassment policy and internal complaint procedure should be provided to all employees, no exceptions, with each employee signing a form to acknowledge their receipt and review of the policy. As part of the policy and procedure, an internal investigation plan or protocol should be established. The way complaints are investigated and resolved is critical. Mishandling this process could swing the door of liability wide-open.
Employers should develop a uniform plan for internal investigations, with built-in flexibility so that investigations can be adapted to each situation. The plan should include at least four inflexible mainstays that apply uniformly to all investigations. First, all investigations must begin promptly after the complaint is received. Failure to do so may allow any existing harassment to continue or escalate, which in turn exposes employers to liability and perhaps even punitive damages if a court finds that the employer knowingly allowed unlawful harassment to persist. Second, the plan should provide for the appointment of a neutral investigator who is trained, credible, and knowledgeable about state and federal anti-harassment law. If necessary, an outside investigator may need to be retained. Third, both the accuser’s and the accused harasser’s work history and personnel file should be thoroughly reviewed in connection with the investigation. This would include performance evaluations, prior disciplinary notices, and all similar records. Lastly, the investigator’s results should be documented in a written report. The report should include the investigator’s conclusions as to the credibility of witnesses, the accuser, and the accused harasser; factual findings regarding the underlying events; and recommendations for appropriate corrective actions.
The flexible aspects of the investigation would include the length of the investigation, the number of witnesses or other persons involved, and the range of corrective actions to be taken on valid complaints. The appropriate timespan for an investigation depends on the circumstances, but could range from a few weeks to several months. The key is that the investigation begin promptly, and courts will judge this “promptness” based on an objective reasonableness standard. Once the investigation is completed, the employer should notify the accuser and the accused harasser of the results as soon as possible. If the investigator finds that unlawful harassment occurred, then appropriate corrective action must be taken. The corrective action should be implemented in a timely manner and be tailored to the underlying conduct. An off-color remark may warrant a mere verbal warning, while inappropriate unwelcome touching may instead require a suspension or discharge. Further, the employer should be prepared to withdraw or correct any prior action taken against the accuser by the accused harasser or incidental to the harassment. Here are additional preventive measures employers can take:
· Train supervisors on how to identify, prevent, and eliminate unlawful harassment and discrimination.
· Do not presume that harassment or discrimination cannot involve persons of the same gender.
· Implement a zero-tolerance policy for retaliation against employees who make complaints of unlawful harassment.
· Foster a culture where employees feel free to say something if they observe potentially harassing or discriminatory conduct.