Advisors to Management
HARASSMENT INVESTIGATION GUIDE
Sexual harassment is one of
the most troublesome human resource responsibilities to deal with because it involves
employees' basic values and attitudes. It is such a pervasive issue, however - surveys
show that from 42 to 90 percent of all working women have experienced some form of sexual
harassment - that employers should know what to do if a charge is made.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual; or
Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
There are two types of sexual harassment:
"QUID PRO QUO"
|Quid pro quo (this for that) occurs when expressed or implied requests or demands are made in exchange for keeping or advancing in a job. Because the harasser must have the authority to alter an employee's terms and conditions of employment. Even if it had no knowledge, an employer usually will be held liable when this type of harassment is proven.|
Hostile environment cases may include lewd jokes or comments, displaying explicit or sexually suggestive material, or repeated requests for a sexual or dating relationship. Where non-supervisors are involved, an employer will be liable for this type of harassment only when it has actual knowledge and fails to take immediate and appropriate corrective action.
Duty to Investigate
Employers have an obligation to investigate promptly and thoroughly any charge of sexual harassment. A proper investigation may limit an employer's liability. In hostile environment cases, a good grievance procedure, prompt investigation, and appropriate action may insulate the organization from any liability at all.
When and how an employer becomes aware of the harassment can be the key to whether it reacts appropriately. There is no such thing as "off the record" for management and human resource professionals when dealing with sexual harassment. However, only those with a need to know should be made aware of the charge.
Employers should treat every claim, however frivolous it may appear, as valid until proven otherwise. An investigation should be done within days and should include speaking to anyone who may have personal knowledge of the situation, including the accused harasser.
Make no assumptions and confine the investigation to relevant facts. It is important to keep the investigation and the facts it uncovers under "strict need to know rules." Confidentiality is important to prevent defamation of either the complainant or the accused. Disparaging the accused's character unnecessarily may result in nullifying the employer's qualified privilege to discuss the situation during the investigation.
An investigator should take notes during each session with the parties but should not prepare a conclusory formal report. If a suit is filed, such a report can be made part of the evidence and may prove damaging to the employer. "Let the facts speak for themselves." The investigator should prepare a detailed factual chronology, set against a chronology of what was occurring in the workplace at the relevant times.
Based on all the facts uncovered during the investigation as well as on judgments about the individuals' credibility, the employer should determine whether the behavior was unwelcome and whether it would offend a "reasonable person." The test for whether the conduct amounts to sexual harassment is "the totality of the circumstances" - the nature of the advances and the context in which they occurred.
If the complained of actions amounted to sexual harassment, the employer then must decide on appropriate discipline. Factors to consider are the severity of the conduct, the frequency, the pervasiveness, and any prior complaints. Finally, follow-up interviews should be conducted with both the complainant and the accused to inform them of the results of the investigation and if discipline is involved, the accused's personnel file should be carefully documented.
Sexual Harassment Claims:
An Investigation and Action Guide
As sexual harassment issues gain media attention and victims become more willing to speak out, the number of harassment claims continues to mushroom. Sexual harassment is bad for business, not only because of lawsuits, but because harassment problems can infect your workplace and lead to poor morale, high turnover, reduced productivity, and increased errors by intimidated employees.
The most important steps to take to eradicate harassment within your organization, while simultaneously providing a defense for your company in the event of a claim, are:
1) establish a clear no-harassment policy;
2) communicate the policy to all employees;
3) train supervisors; and,
4) enforce the policy by investigating all claims and taking prompt action.
A Nine-Point Investigation Guide
In general, you are liable for not taking steps to eliminate harassment. That's why a prompt and vigorous investigation is critical not only to stop the problem but also to buttress your defense in the event of a lawsuit. Your policy should promise a thorough investigation, but you could run into serious trouble on this point if you don't follow through because an employee can claim you are guilty of not following your own policies.
Here are some suggestions on how to handle investigations of sexual harassment complaints as well as other types of employee harassment:
1. Designate a company representative: Give all employees the name of at least one. person, other than a supervisor, to whom a harassment complaint can be made. This gives employees someone to contact in case a supervisor is causing the problem.
2. Maintain confidentiality: Complaints and investigations should be kept confidential. Be sensitive to all parties' right to privacy. Keep all investigation documents separate from the employee's personnel files.
3. Appoint investigators: Select one person, or preferably two-a man and a woman-to jointly conduct the investigation. They should be good listeners, take the problem seriously, and be sympathetic to the situation. It's important to appreciate the effect of sexual harassment on the victim and the consequences a false claim can have on the accused's career. The investigators should try to remain objective. If a woman is making We complaint, have a woman available to listen to the story.
4. Thoroughly interview all employees involved. Try to get specific details such as who, what, when, where, why, and how. Are there witnesses? When you first talk with the accused, don't mention names, and be general. Start with a question like, "Have you ever asked anyone here out"? Then move on to specifics.
5. Interview witnesses: Again, don't mention names at first. Ask witnesses if they have seen evidence of harassment. Inquire about the accuser, then the accused. For example, how long has the witness been associated with the parties? Does the witness know anything about the interactions of the people involved? Remind witnesses about confidentiality. Assure them that no adverse job action will be taken against them for cooperating.
6. Document everything: Write down all that is said by each person interviewed. Keep thorough records of everything you've said and done.
7. Weigh the evidence: Is the complaint valid? Because there often are no witnesses, this can be a tough call. Try to evaluate credibility. Some items to consider are the person's demeanor and attitude, consistency of statements, and ability to perceive events. Watch for major discrepancies between the continued on next page employee's story and that of witnesses.
Is there a history of prior problems? While past history alone may not be a predictor of future events, it certainly is one element to consider. Of course, prior conduct includes past complaints made by the accuser as well as complaints made against an accused.
8. Impose discipline if the complaint is valid: Fashion the punishment to solve the problem. Depending on the situation, this may include a warning, transfer, counseling, and, in flagrant cases, termination. Advise and reassure the accuser of the actions that have been taken. Never make the victim bear the burden of the discipline. For example, when a transfer is the best solution, try to transfer the harasser rather than the victim. Follow up with the victim a few weeks later to make sure everything is all right and that there hasn't been any retaliation.
9. Use diplomacy: There are special procedures to follow if you can't verify the complaint. Always be diplomatic. Tell the accuser that you were unable to substantiate the claim. Never suggest anyone is lying without undisputed evidence. Remind all parties about your harassment policy. If appropriate, tactfully warn the accused against retaliation. Leave the door open for further investigation if more evidence is uncovered.
Handling Special Situations
It's not uncommon for an employee to mention a problem but refuse to give names or details. The employee may not want to get anyone in trouble or cause an uncomfortable situation. In these cases, the best approach is to conduct a low-level investigation to determine if something is amiss. The complaint could be an early warning sign. You might want to casually ask, for example, "How's everyone getting along"? Merely asking such a question might put a stop to the problem. If you think there could be a serious harassment situation brewing, consider reminding all employees in the department or work group about your policy.
After making a complaint, an employee will sometimes have second thoughts and ask you to stop the investigation. The fact is, if there is a problem, you need to make efforts to end it. So, whenever possible, follow through with the investigation.
* Investigate Problems Promptly *
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Copyright © 2001 by David E. Miller