What to do When You Receive a Sexual Harassment Complaint
Author Name: Jim McKay
Posted: 01-08-2018 06:16 AM
Synopsis: There is rarely a day that goes by without sexual harassment in the news. The high publicity combined with the "me-too" movement has empowered women to stand up for their rights in every workplace. As a result, harassment complaints are on the rise. It's critical that every manager understands the steps they should take when receiving a complaint.
With sexual harassment in the news almost every day, less publicized complaints are up as well. Women feel empowered and are comfortable reporting what they may have endured privately before recent events changed the landscape. Many managers are not experienced with handling harassment complaints and may feel a little overwhelmed. By law, employers must “exercise reasonable care to prevent and correct harassment” to have a defense against liability. As a representative of their organization, managers have the same duty. Fortunately, the EEOC’s published guidelines and HR and law experts recommendations are available to guide managers through the complaint process.
The first step any manager should take is read all literature published by the EEOC on harassment, retaliation, and complaint response procedures and your organization’s harassment policy and complaint procedure process. With these two references in hand, you are prepared to begin.
Most employers have a harassment policy that specifies what conduct is acceptable in the workplace and how to file a complaint. Organizations that don’t have this critical document will have a difficult time proving that they took “reasonable care to prevent and correct harassment.” Your complaint procedures may require employees to report the harassment to the human resources department. If this is the case in your organization, it’s critical that you don’t just point them to go to human resources and wash your hands of it. It probably took a lot of courage for the employee to come forward. If they are brushed off, they may become disheartened and not report the harassment at all. That is a terrible outcome legally and ethically.
Instead, take the complaint by listening and offering no judgment or opinion. No matter what your opinion may be about the complaint, it’s imperative that you don’t take sides. Every harassment complaint must be investigated thoroughly and objectively. Taking sides can get you in legal trouble. Complainants can allege that their complaint wasn’t taken seriously, and nothing was done to address their harassment. As you listen to the complaint, take thorough notes on the facts of the case. Your notes are likely the first official record and may even be used in court or settlement proceedings.
Report the harassment immediately to your employer through the complaint procedure channels outlined in the harassment policy. If you were not the official person to take the complaint, report it immediately to the person who is responsible and encourage the victim to file the complaint through complaint procedure channels as well. Timing is vital here. Harassment complaints are not something to save until later. The law requires that sexual harassment is dealt with expeditiously. When a complaint is given to you, it should be given to your employer before the ink dries.
Separate the complainant and the accused for the duration of the investigation. One or both employees should be moved to a location or job where there is no interaction between them. Move the accused if possible, but if you have to move the complainant do so carefully. If the complainant is moved to a location or a position that they feel is negative, it’s often seen as retaliation for filing the complaint. If you move the employee, the move must be lateral. He or she must have the same or substantially similar work. If the movement is to a new location, it shouldn’t be a financial hardship or an inconvenient distance from the current workplace. Work with the complainant to make sure they are satisfied with where you have moved them.
Keep the complaint confidential. The last thing you need to divide the workplace and betray the complainant’s trust. EEOC guidelines tell employers to keep confidentiality to the greatest extent possible. During the investigation, it’s inevitable that some co-workers will be interviewed as witnesses, and some facts of the case will come out, so complete confidentiality is not possible. However, information should be given on a need to know basis only. Without confidentiality, it will be difficult to get other employees to come forward to report future incidents.
Warn your employees about retaliation. Harassment complaints are emotional, and people take sides. Retaliation is just as illegal as harassment itself and accounts for 45% of all complaints taken by the EEOC. Bullying, isolation and refusing to work with someone shouldn’t ever be part of workplace behavior, but when they are done as retaliation, these toxic behaviors become illegal as well.
Retaliation is also a danger after a ruling has been made. No matter what the outcome, the complainant cannot be disciplined or receive any other negative tangible employment action taken against them. As long as the complaining worker reported the harassment with a good faith belief that they had been harassed, they are protected from retaliation.
Most organizations have a well-trained expert in charge of investigating and ruling on sexual harassment however if you work for a small business there is a possibility that the responsibility is yours. If the case is particularly complicated or severe, you may want to hire legal assistance or obtain an expert HR investigator to handle the investigation. The employee accused of harassment cannot have supervisory authority over the investigator, so when a high-ranking executive is accused, it may be necessary to hire an outside investigator.
If you do investigate, ensure the complainant that their case will be investigated immediately and that if harassment is found, steps will be taken to stop the conduct. It’s imperative that you interview the accused, the complainant, and all witnesses with objectivity. Be extremely thorough and take notes of everything that is said. Start the investigation quickly and make your ruling as soon as possible. During the interviewing process refrain from asking questions or taking answers about events that happen outside of work, unless one of the parties was representing their employer during the incident. Interview the accused party first, if they admit to the conduct, then move to the discipline phase immediately.
When interviewing witnesses, ask yourself about their credibility. Does the story sound plausible, does the witness have any reason to lie, do other witnesses corroborate their stories? Ask them what they saw, what they heard, if the accused has harassed anyone else, what the complainant or accused told them, and if they know of anyone else who could have evidence in the case.
When interviewing the complainant ask for any evidence they may have concerning guilt or innocence, witnesses that may corroborate their stories, and any reasons the complainant or accused may be lying. Examine both parties’ employment history to see there is a pattern of deception or harassment.
If you determine that sexual harassment has occurred, follow the organization’s progressive discipline policy, and inform all relevant parties involved with the case. Be sure that you clearly explain your decision. A lack of communication always causes problems. If you determine that inappropriate conduct or illegal harassed occurred, ask the harassed employee how they would like to see the situation resolved. It may be as simple as an apology or moving the perpetrator to a new department.
All harassment complaints, the results of the investigation, and the resolution must be thoroughly documented and kept in the organization’s permanent records.
If your solution is to separate the two parties involved in the case, never move the complainant unless they have requested it. Just like during the investigation, it can be interpreted as retaliation. If you decide to take disciplinary action using the progressive discipline policy, make sure that similar infractions receive similar punishments. If executives receive lighter discipline than regular employees, you are opening yourself up to a lawsuit. This also applies to investigations. All investigations should be handled with the same urgency and level of care no matter who you are investigating.
Additionally, the level of punishment should fit the severity of the harassment to avoid wrongful termination or similar lawsuits. For instance, for an employee with no history of inappropriate conduct who makes several off-color remarks, an appropriate punishment might be a written warning. Whereas an employee whose behavior is continuous and physically aggressive may receive employment termination.
When victims have monetary losses due to the harassment, such as unpaid time off, provide compensation for these losses. If victims resign due to the harassment, offer them reinstatement. Also, correct unfairly negative performance reviews or disciplinary actions taken against victims because of harassment.
If no determination can be made because of lack of evidence and contradictions during the interviews, managers must still act to ensure harassment or retaliation does not take place in the future. This could mean separating the employees, close monitoring of the situation, or further training of all employees on sexual harassment.
When a manager personally witnesses or finds evidence of harassment that wasn't reported, he or she still has a duty to investigate. For instance, if notes or emails were found or jokes and comments were overheard, action must be taken to determine if illegal harassment occurred and to make sure the inappropriate behavior does not continue. Remember, employers must prevent and correct harassment no matter how they find out about it.
Handling a harassment complaint is never easy. It’s an emotional event for both parties and often can divide the workplace. Make sure you stay calm and objective and approach every interview and interaction with sensitivity. Follow the guidelines published by the EEOC and get help from your human resources or legal department when needed. It’s your responsibility as a representative of your employer to do everything possible to take “reasonable care to prevent and correct harassment” and handling sexual harassment complaints is an important part of that duty.