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Unusually motivated by the need to keep you enlightened, here we are, yet again, to keep the promise we made from the last blog that we’ll have Part III of this series. In Part II, we mentioned that sexual harassment in the workplace has become a very sensitive legal issue today, especially following a renewed interest in litigations concerning this type of harassment and abuse, which has been spurred by the #MeToo Movement. Because we want them to stay ahead of the game, we strive to provide both employers with tips and guidance on how to remain compliant with the law on workplace anti-harassment policy.

As a preliminary matter, we’ve already discussed about how to disseminate and implement the anti-harassment policy in part II of the series. In this blog, which is Part III of the series, we’re going to hammer down on how sexual harassment complaints in the workplace should be investigated and resolved impartially, thoroughly, and promptly.

Investigating & Resolving Sexual Harassment Complaints in the Workplace

For starters, in Part I of the series, we mentioned that, just like an employee handbook, an anti-harassment policy creates a presumption in the courtroom that, in case an employee sues you for sexual harassment & abuse, you could confidently say that you attest to a non-harassment policy in the company or business. However, when things get out of hand and complaints of sexual harassment reach you, you need to have an elaborate plan on how to investigate and resolve sexual harassment complaints. The following set of best practices acts as a hands-on guide to investigating and resolving such complaints impartially, thoroughly, and promptly.

Investigations should start promptly – it’s crucial that investigations should start as soon as possible, preferably the same day, after sexual harassment complaints are received.

The complaining party should be informed about the investigation – the complainant should be notified about the start and updated on the progress of the investigation. However, to protect and preserve the integrity of the investigation, discretion should be observed in the sharing of information. Nonetheless, it’s critical to emphasize several things including the employer’s non-retaliation policy, employer’s commitment to carry out a thorough and impartial investigation, and employer’s allegiance to enforce the company’s anti-harassment policy.

Applicable CBAs (collective bargaining agreements) should be factored in – where union employees are involved, reviewing any applicable CBAs and determining the applicability of any special requirement during the investigation is critical.

A timeline should be set – impartial, thorough, and prompt investigations require the establishment of a specific timeframe from the start to the conclusion of an investigation.

Immediate action(s) should be evaluated – it’s essential to decide whether interim or immediate action is necessary. For example, you can evaluate whether the alleged harasser(s) should be put on temporary leave or other measures should be taken to avert further damage or offer an immediate remedy.

An impartial and thorough investigator should be identified – while the investigator or investigation team should be trained in handling sexual harassment issues, it’s critical to identify whether an outside counsel, in-house counsel, or the company’s HR (Human Resource) personnel should conduct the investigation and whether they would do so impartially, thoroughly, and promptly.

Interviews should be conducted thoroughly and impartially – all parties (the alleged harasser, complainant, and any witnesses) should be provided with an equal opportunity to tell their side of the story. However, several things should be observed; all information revealed should be generally kept discrete and confidential. If anything is going to be shared, it should in accordance with policy or otherwise on a “need to know” basis. The employer should ensure that no one retaliates against the complainant or witness for sharing information during interviews, factual information should be distinguished from workplace gossip and biased information, all details should be recorded in writing and all witness testimony kept for future reference;

All information should be evaluated keenly to make sure that only concrete findings are made – several steps should be taken when determining whether the sexual harassment complaint is meritorious. The employer should ensure that:

  • All information gathered should be reviewed;
  • The disputed and undisputed should be established;
  • Determine a timeline of events that led to the sexual harassment;
  • The credibility and validity of each person interviewed should be assessed;
  • It should be determined whether the facts imply a single or pattern of misconduct if it is concluded that the complaint is meritorious;
  • It should be determined whether the conduct violated the anti-harassment policy and what local, state, or federal laws apply;
  • The potential liability of the employer, if any, should be assessed.

The appropriate course of action should be taken – several factors should be taken into account when deciding what action should be taken against the harasser. These factors include:

  • Action taken by the employer in response to prior similar complaints of harassment;
  • The relative positions of the complaining employee and the accused within the company;
  • Whether the accused has been the subject of any prior complaints of misconduct;
  • The severity of the conduct;
  • Whether the proposed action will deter future harassment;
  • Whether the proposed action will end ongoing harassment.

Conclude the investigation – at the close of the investigation, several things should happen.

  • The accused and complainant should meet with the investigator separately and explain the findings;
  • The accused should be provided with the rationale behind the remedial or disciplinary action(s) taken against them if the investigation concludes that the complaint is valid;
  • However, if the investigation concludes that the complaint is unfounded, the investigator should explain how and why to both the accused and complainant;
  • To assess the effectiveness of the action taken, follow-up with the complainant should be made at regular intervals;
  • Keep a separate standalone file where all relevant documentation related to the sexual harassment complaint and investigation report is kept;
  • A confidential internal system for monitoring and tracking sexual harassment and abuse in the workplace should be established.

As usual, stay tuned for more guidance and counsel and always be #UnusuallyMotivated. In the interim, if there are any questions or comments, please let us know at the Contact Us page!