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Complaint Procedures
Investigation Procedures
Evaluating Evidence and Communicating the Decision
Disciplinary Action
Conclusion
Most employers now have an explicit
policy against
sexual harassment. Although having a clear policy is
a good start, it is just the beginning of putting an effective
program in place. Many employers have not planned an approach to the
problem beyond creating a written policy. Advance planning helps
employers achieve the goal of a prompt and appropriate response.
This article is a roadmap of strategies to avoid panic when a claim
of sexual harassment is made.
[Creating HR Policies or Employee Handbook?]
The Editors recognize that sexual
harassment may involve harassment by females of males or same-sex
harassment, but have used examples of male harassers and female
complainants because most reported cases involve that scenario. The
procedures in this article also may be used to address other forms
of harassment directed at individuals because of their membership in
a protected class.
Complaint Procedures
[Download Free Policies]
The complaint procedure for
allegations of harassment can be incorporated into the employer’s
normal grievance procedure or it can be a separate process. Using
the normal grievance procedure can be the most efficient for
administrative purposes, but special procedures may be needed for
highly sensitive situations. For example, employees should not be
required to make a complaint to their immediate supervisor if the
supervisor is the alleged harasser or has allowed or condoned the
alleged harassment. Employees should be permitted to complain
directly to a neutral, uninvolved party, such as the HR Manager. At
times, such as when senior management or the CEO is accused, it may
be necessary to have the Board of Directors or some outside
investigator handle the complaint. It generally helps to have a
specially trained person oversee all harassment grievances.
Complaints of harassment require quick action, objectivity, thorough
investigation, timely and appropriate resolution, and (to the extent
that is possible) confidentiality.
Investigation Procedures
Investigations must be conducted
promptly for several reasons. The disruption caused by actual
harassment or rumors can be substantial. Evidence and memories of
witnesses may be less accurate as time passes. A complaining
employee or unjustly accused individual may suffer increasing
emotional distress the longer any resolution is delayed. This delay
may lead to subsequent legal action and claims of damages for
emotional distress. Furthermore, the courts have established that
employers are liable for failing to eliminate sexual harassment
about which they were, or should have been, aware. Thus, employers
should investigate all complaints, even when they are skeptical. The
following steps can help ensure an effective investigation:
1. HR Department Receives the
Complaint. Supervisors or others who receive the complaint refer
it to the HR Department without delay.
2. HR Department Chooses an
Investigator. The investigator typically should be a human
resources professional who is specially trained to conduct
investigations and who understands both the legal and organizational
definitions of harassment. Having the same person handle all these
complaints can standardize the process and reveal whether other
complaints have been received about the same person or department.
3. Contact Between the Parties is
Reduced or Eliminated. Both the complaining employee and the
alleged harasser should be told to avoid contact with one another,
and ways to minimize contact should be implemented. A transfer of
either person may be appropriate during the investigation as long as
neither suffers a reduction in pay or benefits.
4. Parties and Witnesses are
Interviewed. The complaining employee and the alleged harasser
should each be given a chance to tell their versions of the facts.
Generally, the complaining party should be interviewed first to
identify important details and witnesses. She should be told that
details, although possibly embarrassing, are needed for an accurate
investigation. The complaining employee should be offered counseling
or other assistance in order to deal with the emotional aspects of
the case. She should also be encouraged to report any forms of
retaliation or continuing harassment.
The interview with the alleged
harasser should be approached objectively. He should be allowed to
respond to each allegation and should be told about the type of
disciplinary action that may be taken if the allegations are true.
The investigator should emphasize that no decision has yet been
reached and that his account is crucial for making the correct
determination. If the alleged harasser is uncooperative, he should
be told in a nonthreatening way that his failure to cooperate will
be considered as obstructing the investigation and may result in
discipline, regardless of the investigation’s outcome.
Witnesses should be told as little as
possible about the details of the complaint in order to protect
confidentiality and reduce the employer’s exposure to defamation
claims. They should also be informed that failure to cooperate can
lead to discipline and that they will not be retaliated against for
cooperating.
Each person who is interviewed should
prepare and sign a statement outlining the information they have
provided, if they do not object. If they object to signing, the
objection should be witnessed by a neutral individual. If the
session is tape recorded or videotaped, the person being interviewed
should be informed before questioning begins. When physical violence
or sexual assault are alleged, both parties should be told that
reports will be made to the appropriate legal authorities.
Once the initial interviews have been
conducted, individuals should be questioned again based on the
corroborating or conflicting testimony of other witnesses. Stories
may change when the parties are confronted with evidence that they
hoped would not be presented.
The following are some other points to
remember when conducting an investigative interview:
(a) Remind the person being
interviewed that there will be no retaliation for cooperation;
(b) Be and appear as nonjudgmental and neutral as possible;
(c) Ask open-ended questions and do not suggest answers to
questions;
(d) Get as much detail as possible;
(e) Do not show outrage or dismay at any answer (this reaction may
cause the story to change);
(f) Do not promise complete confidentiality or anonymity, or that
punishment will be less severe if the employee confesses;
(g) Document as much as possible about the interview, including
the person’s answers, gestures, appearance, accuracy of memory,
and overall credibility.
5. Records are Separated from Other
Personnel Files. Investigation records should be kept separate
from personnel files in a "department file." The only item from the
investigation that should be kept in an individual’s personnel file
is a written recommendation of disciplinary action. This notation
should appear in the harasser’s file only. Employers should note
that these precautions are aimed at curbing the spread of sensitive
information within the organization. Investigation files may be
obtained by the opposing side in subsequent legal action.
Evaluating Evidence and Communicating the Decision
At the conclusion of the
investigation, the employer must decide whether the alleged conduct
occurred and whether the conduct was a violation of its harassment
policy. An employer’s policy may prohibit conduct that is offensive
even if it is not actually illegal. In cases where there is no
corroborating evidence, the employer may still be able to make a
decision based on the credibility of the two parties. For example,
contradictory statements by the same person, or changes in one
person’s story, may make a conclusion possible. However, there may
be cases when the employer should not take action against either
party because the evidence is inconclusive. Otherwise, the employer
may find itself facing claims of wrongful discharge, defamation,
infliction of emotional distress, or retaliation. Either party
should be given the chance to appeal an unfavorable decision and to
submit additional evidence. In communicating a final determination,
the employer should: (1) document and list each reason for the
decision; and (2) limit the communication to those individuals who
are directly involved and any members of management who have a
legitimate need to know.
Disciplinary Action
Disciplinary action should be taken if
the employer concludes that its harassment policy has been violated.
The discipline should reflect whether it is the first violation of
the policy or part of a pattern of harassment. The nature and
seriousness of the behavior should also be considered. The
organization’s standard disciplinary procedures should be used and
discipline should follow appropriate past practices. Employers
should avoid the heavy-handed approach of suspending or terminating
all violators without regard to the nature and degree of the
offense. On the other hand, a weak response to severe harassment is
likely to cause the complaining party to sue and may increase the
amount of damages. Employees also should understand that false
accusations and false information about harassment will be grounds
for discipline, and possibly termination. However, it is important
to convey this information in a way that does not discourage
good-faith reports.
Written records of a finding of
harassment should not state that the employee committed legally
impermissible harassment. The harasser’s record should reflect only
that he violated the employer’s sexual harassment policy or conduct
policy. Stating that the employee was guilty of sexual harassment,
rather than focusing on the policy violation, provides the harasser
a chance to argue about whether his actions met the legal definition
of harassment.
Conclusion
All claims of
harassment must be taken
seriously and investigated. Naturally, there may be some situations
when it is clear that the behavior did not violate the employer’s
policy even if it upset the complaining party. For example, a male
employee may have done nothing more than show too much interest in a
female employee’s personal life. These situations do not require a
full investigation but will need some type of resolution that is
understood by both individuals. Addressing every complaint prevents
misunderstandings from turning into larger conflicts. It also sends
a message to all employees about the organization’s commitment to
protecting its workforce from harassment. |
Personnel
Policy Service, Inc.
