How an Employer Should Investigate and Resolve Sexual Harassment Complaints
In my recent column "Avoid Trouble by Creating and Enforcing an Effective Sexual Harassment Policy", we discussed how employers can establish an effective sexual harassment prevention program. But sometimes after your best efforts, incidents will arise, and how you handle the initial complaint can make a huge difference in the outcome, and its ultimate cost.
One of the biggest and most common mistakes employers make is doing nothing or too little, hoping it will go away. This always makes it worse.
"Rigorous enforcement of an investigation and resolution policy is necessary to prevent harassment claims from becoming expensive lawsuits," says attorney Charles W. Surasky of the law firm of Smith Currie & Hancock. "Good investigations and fair resolutions will also reinforce the message that harassment is not tolerated in your workplace."
Start by reviewing the Equal Employment Opportunity Commission's guidelines on how to perform investigations: www.eeoc.gov/policy/docs/harassment.html.
Next, identify employees suited to conducting investigations, and if possible include both males and females. Train as many potential investigators as you have good candidates in all parts of your operation, Surasky suggests. "If a complaint arises, you will want an investigator who is as far removed from the complainant as possible."
Make it known to all employees that sexual harassment incidents should be reported promptly. Employees should report to their immediate superior. But if the supervisor is the alleged harasser, provide an alternative reporting path.
Supervisors should be trained about behavior to look for and to report immediately to management any claims or inappropriate workplace behavior they observe. Make sure they are trained not to dissuade claimants or attempt to deal with claims themselves.
If a complainant asks that the complaint be kept confidential to avoid embarrassment or negative reactions from other employees, your supervisors should explain that your company is legally bound to investigate all complaints. However, you can say the company will do its best to keep the facts confidential while completing a thorough investigation. Also make sure all employees know that any negative behavior toward a complaining employee will not be tolerated.
Harassment incidents should be investigated immediately—any delay may later be viewed as an attempt to discourage the employee from pursuing a claim. "Keep in mind that any complaint may eventually lead to litigation," Surasky points out. "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."
If possible, choose an investigator of the same sex as the complainant. Ask them to complete a thorough investigation as quickly as possible. "These are potentially competing objectives," Surasky admits. "It's important to have well-trained investigators who know what is necessary and what's not."
Interviews should include the claimant, alleged perpetrator, and everyone with first-hand knowledge, including possibly ex-employees, independent contractors or consultants.
Avoid leading questions and focus on gathering facts—who, what, when, where. Investigators also should appear neutral and non-judgmental—persistent in obtaining facts without appearing to cross-examine or otherwise intimidate those they interview. Investigators also should avoid offering opinions about what they hear and keep a careful record that documents only the facts.
Because these records may appear in subsequent litigation, they should be as objective as possible. At the same time make sure to document the investigation, Surasky notes. "A lack of records may be more damaging than anything contained in the record."
In the end, management must decide who, if anyone, is at fault and what discipline to apply. "No one should suffer retaliation for initiating a complaint or giving factual testimony," Surasky stresses.
"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."
David Sparkman is founding editor of ACWI Advance, the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.
