I have had to deal with a few client sexual harassment issues these past two months. As such, I thought it would be appropriate to review a few important items when faced with a potentially delicate sexual harassment complaint.
Steps to Handling a Sexual Harassment Complaint
All companies should direct any sexual harassment complaint to Human Resources unless, of course, someone in HR is being accused of the inappropriate behavior. In such a case, a different person in upper management should be sought out. The HR director or manager will be responsible for handling the complaint and conducting the investigation. Amongst other things, the HR director should:
- Explain to the parties involved- the accuser and the accused individual- the seriousness of a sexual harassment complaint.
- Explain the company’s sexual harassment policy and investigation procedures to the parties involved.
- If you have a company handbook, the sexual harassment policy and the investigation procedures should be prominently displayed and there should be no inconsistencies in the policy or procedures.
- Interview both parties and any witnesses confidentially.
- Write up recaps of all interviews and facts alleged.
- Explore all informal means of resolving the complaint.
- Complete an investigation of the alleged harassment which includes the preparation of a written report.
- Submit a written report summarizing the investigation, including recommendations and suggesting appropriate disciplinary action, if any, to designated company officials.
- Share the results (not all of the specific details) of the report and recommendations approved with both parties involved.
- Notify the police if criminal activities are alleged.
While it may seem obvious, I cannot emphasize enough that the entire investigation must be held in the strictest confidence. All inquiries, complaints, interviews, notes and investigations should be treated confidentially and should be kept as confidential as possible. Information should be maintained only between those involved in the investigation. Complete confidentiality is impossible as the accused will likely have to be told the name of his/her accuser.
Any questions related to the procedures for handling information for any sexual harassment complaints and investigations should be addressed to the person heading up the investigation. That same person should be the one asking all of the questions of the parties and witnesses.
How the company responds to, and investigates, a sexual harassment complaint is critical and often impacts liability exposure. Sitting on the complaint; letting time lapse; failing to tie up loose ends; interviewing the parties/witnesses poorly; and failing to interview all witnesses all scream of incompetence or potential employer liability.
On the other hand, I can tell you of court decisions in both federal and state court that completely absolved the employer of liability where the employer promptly, effectively and thoroughly investigated the complaint, wrote up a detailed report and took appropriate (and fair) action.
Drafting the Reporting
Stealing a phrase from an article I read: “Every investigation should be documented with the worst-case scenario in mind". Employers always need to consider the worst case scenario since it is impossible to predict how a judge or jury would rule when presented with facts, believable or unreliable witnesses, and a sympathetic accuser (whether the accuser is telling the truth or not!). I have had completely honest clients tell the truth at hearings who were subsequently perceived as snake oil salesmen while I have seen others cry during their entire deposition or testimony, lying multiple times, yet they are deemed “believable” when the decision is rendered. Do not assume anything.
Litigation is costly and should be avoided at all times. But if litigation is the end game, be advised that every sentence in the investigation report will be analyzed by all parties. That is why there should be complete attention to detail and all relevant facts and information from the parties involved, including the witnesses, should be included in the report. Any witness statements should be signed by the witnesses or affidavits should be provided by them. Any conclusions or results of the investigation, any credibility determinations, and any disciplinary action should be formulated on an objective and consistent basis. This is important because if litigation occurs, credibility determinations may be done again by a judge or a jury and if these subsequent credibility determinations greater differ from those in the written report, doubt may be cast in their eyes on the entire report that has been prepared. Finally, if discipline is warranted and it does not involve termination, the discipline should be in accordance with any written company policy.
Practice hint: If you are not certain what items might come under scrutiny during a hearing or lawsuit, check out the EEOC guidelines which include advice on how to reach credibility determinations, protective measures to take during the investigation, and offer suggested questions to the various parties. The guidance is available on the EEOC’s website.
Final Steps (Hopefully…)
Once a report is prepared and agreed upon by management, the HR director and/or president should then meet with the employee who complained and the accused, explain what was done in the investigation and the results of the investigation. I would not give any party a physical copy of the report. I would also remind the employee to come forward with any future problems so as to avoid potential retaliation concerns.
Do not put this report in the employment files of either or both parties. Too many eyes can see those files and the cloud of confidentiality would be greatly compromised if someone not involved in the investigation later becomes aware of the details of the event which transpired. All sexual harassment files should be kept in a supervised and secured file area with extremely limited access.