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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Harassment Investigations When No Formal
Complaint is Made Q&A
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK’S E-TIP: Harassment Investigations When No Formal
Complaint is Made Q&A
If an employee does not complain to you about harassment, you don’t
have to do anything about it, right? Wrong. You have a duty to
investigate every potential harassment complaint you find out about, or
risk facing a claim in court. Find out the steps to take to make sure
you
investigate properly. |
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THIS WEEK’S E-TIP: Harassment Investigations When No Formal
Complaint is Made Q&A
Q: We have a female employee who has said informally to
coworkers that she is being harassed by a male coworker. The HR
manager has asked her to make a formal complaint, but she has
refused. Will we properly fulfill our legal obligations if we ask
her to sign
a statement that she does not want to make a formal complaint? Are
there other steps we should take?
A: A signed statement that the employee does not want to make
an
official complaint will not provide meaningful protection to your
organization. If she later decides to pursue a harassment claim with
the
Equal Employment Opportunity Commission (EEOC) or the courts and
she is able to show that she had indeed been harassed, they will
penalize you for not taking appropriate steps to stop the problem.
Court cases have established that employers can be liable for
failing to
take prompt and effective action to eliminate known hostile work
environments. The employee has put you on notice of a potential
problem, even though she may not have followed your organization’s
complaint procedures. Therefore, you should take action. (Download
free Productive Work Environment model policy covering harassment
issues.)
As a general rule, all harassment complaints should be investigated,
even when the complaining employee requests that nothing be done or
when the complaint is anonymous. (And of course, all forms of
harassment, not just sexual harassment should be addressed since
courts have consistently found that harassment of any member of a
protected class is a form of illegal discrimination.) The
investigation
should be undertaken promptly and completed as quickly as possible,
for
several reasons.
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First, the disruption caused by actual harassment or rumors can be
substantial. In addition, as time passes, evidence can be lost and
witnesses’ memories often become less accurate and subject to
change.
Furthermore, the longer a resolution is delayed, the more stressful
the
situation becomes for both the complaining employee and the accused
harasser. As a result, delays can lead to subsequent legal claims
for
emotional distress. And, evolving case law has established that
employers are liable for failing to take prompt and effective action
to
eliminate known hostile work environments. Therefore, investigations
should be completed within a few days, if at all possible. |
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The process should provide a fair method so
both sides can be heard
and receive necessary information. Most experts recommend
interviewing the complaining party first to ensure that all
important details
and witnesses are identified promptly. Investigators should be
sensitive
to the emotional nature of the investigation and should be
prepared to
deal with employee embarrassment and anger. They then need to be
patient, but firm, in explaining that precise details are needed
for an
accurate investigation.
The interview of the alleged harasser may be even more difficult
because of the natural instinct of the accused to be defensive.
Therefore, interviewers must be objective and nonjudgmental and
encourage the accused to respond to each allegation. The
investigator
also should explain the disciplinary action possible if the
allegations are
found to be true. However, investigators should not use threats
to obtain
information, but should explain matter-of-factly the
consequences of not
cooperating. Both parties should be told to avoid contact with
one
another, and you should implement measures to facilitate that
outcome.
Witnesses also should be interviewed as soon as possible, and
the
investigator should tell other witnesses as little as possible
about the
details of the complaint and question them only on matters about
which
they are likely to have information. These precautions should
reduce the
employer’s exposure to later claims of defamation.
All responses should be documented and, if possible, statements
should
be put in writing and signed by the persons providing the
information. In
addition, all participants in the investigation should be
reminded that their
cooperation and confidentiality are required, that your policy
prohibits
retaliation, and that any retaliation should be reported
immediately.
Once you have completed your investigation, you should take
appropriate disciplinary action to address any harassment
discovered.
(Download
free Productive Work Environment model policy covering
harassment issues.)
As a final recommendation, you also should consider discussing
these
issues with your attorney since you are dealing both with a
volatile issue
and constantly evolving law. |
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information on harassment investigations in
Productive
Work Environment, Chapter 201A, note 7.
Not a subscriber? If you would like to order one of our policy
chapters,
go to:
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