According to the federal Equal Employment Opportunity Commission, sexual harassment claims have increased by more than 50 percent in fiscal year 2018. Increased awareness following the #MeToo movement, along with courts’ and agencies’ lower standards for what constitutes harassment, reinforce the urgency with which employers must implement effective anti-harassment policies and processes.
Encouraging reporting, taking swift and effective remedial action if warranted, and protecting employees from retaliation are critical. However, those accused also must be treated fairly. Just as employers may suffer serious repercussions by not investigating or correcting conduct that violates anti-harassment, discrimination and retaliation policies, unfair or ineffective procedures can undermine employers’ efforts.
Here are some “do’s” and “don’ts” for employers responding to harassment complaints.
Effectively Defining “Harassment”
The “#MeToo” incidents that have gained the most publicity concerned sexual harassment complaints, in particular against high-level workers or business associates. But the scope of unlawful harassment and employers’ obligations are broader. Harassment may be based on any legally protected category, such as race, religion, disability, or gender identity, to name a few. Additionally, valid claims are not limited to subordinates against senior management. Rather, managers may experience harassment by subordinates or other managers; employees may be of equal rank; or harassers may be third parties, such as customers or vendor representatives.
Another key concept is that the employer is responsible for preventing harassment before it occurs, and for taking effective action against inappropriate conduct. Good policies impose standards of conduct that are higher than the legal definition. Employers must take effective action against conduct that violates the anti-harassment policy, yet does not meet the legal definition of harassment.
“Do’s” When Responding to Complaints
A sound policy is weakened if employers do not ensure employees’ awareness, and that management takes it seriously. Effective training increases both awareness and credibility.
Employers also should have a transparent, written complaint process that is communicated clearly to employees. Employers may explain the reporting procedure in their employee handbooks. To be effective, a policy buried in a handbook will not be sufficient.
Management should consider referring to the reporting policy during meetings and reflect these references in agendas and meeting notes. Smaller employers should communicate their “open door” policy via notices posted in the workplace or attached to paycheck envelopes. Employers with the means to do so should consider implementing a third party “hotline” allowing anonymous complaints.
Employers are obligated to take “immediate and appropriate corrective action” to stop harassment from occurring. An effective investigation is key to the fulfillment of that obligation. Some report require very little investigation. Others require multiple interviews, document reviews, and even electronic analysis.
Selecting the correct investigator can be challenging, particularly few occasions to investigate arise, or the employer has limited resources. Whether the investigator is an internal employee or professional, third-party investigator, the investigator should be properly trained and trusted and, above all, must be impartial, To avoid attacks on impartiality, the investigator should not directly supervise or manage the key personnel involved in the complaint.
Employers should also have a uniform process for conducting investigations, as consistent procedures help bolster credulity. Larger employers should provide adequate training to their internal investigators, and develop written protocols for addressing the internal investigation procedures. Documentation and appropriate communication with the accused and complaining party are important as well.
Other “do’s” include communicating the status of an investigation to the reporting party, particularly the conclusion. Ensuring results (including any disciplinary action) are documented, and making sure the reporting party has a way of reporting perceived reprisals are critical.
“Don’ts” When Responding to Complaints
Some of the “don’ts are fairly obvious. For example, ignoring or trivializing a report may make a workplace issue more serious than it had to be. Pre-judging the merits of a complaint is another obvious mistake. And, as the #MeToo movement has revealed, the age of the complaint does not necessarily undermine its bona fides.
The time is now past to tolerate well-known violators of standard workplace behavior and anti-harassment policies. “Oh that’s just Joe,” may be an admission of liability, depending on the conduct for which “Joe” is infamous. Additionally, employers who protect high-level management at the expense of lower level workers have not learned the recent, highly publicized lessons taught to entertainment and media organizations.
There are other less obvious “don’ts.” For example, requiring employees to submit reports or complaints in writing, or creating other artificial impediments decrease the likelihood of early reporting. It generally is improper to require the reporting party to meet with the accused to “clear the air,” at least if the meeting is not voluntary.
Failing to inform a reporting employee when an investigation is complete, and summarizing the outcome is one of the worst “don’ts.” Employees who seek a lawyer or file a charge because “nothing was done” may be mistaken because management did not keep her informed. That said, specific personnel actions against an accused should not be disclosed.
The appropriate action the employer takes against an accused must be reasonably calculated to end the objectionable conduct. Discharge may or may not be appropriate, depending on factors such as the employer’s policy, the severity of the conduct, the employee’s history, whether there is an employment contract, and more. At the same time, a “slap on the wrist” will surely be second-guessed in the event of repeated conduct. Displacing or transferring the reporting party often leads to later claims of retaliation, but leaving a complaining party in the same work area or in the same “chain of command” as the accused naturally is risky as well.
Determining the proper scope of an investigation is difficult at times. On the one hand, employers should not poison the workplace against the accused or reporting party by over-including witnesses. On the other hand, merely interviewing the accused and complaining party when others may have additional information is insufficient.
Although employers should maintain “need to know” confidentiality to the best of their ability, employers should not promise absolute confidentiality. After all, facts will be disclosed to witnesses during an investigation. To help ensure more accurate witness accounts, employers should instruct those participating in the investigation not to discuss the investigation with their co-workers while it is ongoing.