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This Week's Tip: Harassment Investigations
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"Your Policy and Compliance Experts Since 1972"
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This Week's Tip: Harassment Investigations
A good harassment investigation can protect your organization, while a
bad one can become an employee relations and legal fiasco. If you
follow the proper process, your investigations should result in the
"right"
decisions.
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This Week's Tip: Harassment Investigations
Recent court decisions emphasize that it is not enough just to have a
written harassment policy. You also must make sure that it is
implemented in an "effective" manner. This standard means you must
be proactive and take steps to apply your policy properly. In
particular,
you must be prepared to conduct an investigation to determine the
nature and extent of any alleged harassment.
* Basic Principles of Harassment Investigations *
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. The investigation should be
undertaken promptly and completed as expeditiously as possible, for
several reasons.
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. Furthermore, the
longer a resolution is delayed, the more stressful the situation becomes
for the complaining employee or for an unjustly accused defendant,
which can lead to subsequent legal claims for emotional distress.
And,
case law has established that employers are liable for failing to take
prompt and effective action to eliminate known hostile work
environments. Therefore, investigations typically should be
completed
within a few days.
* Who Should Conduct the Investigation *
Ideally, the investigator should be a human resources professional who
is specially trained to conduct harassment investigations. This
training
helps assure that all important aspects of the situation are considered,
including whether multiple complaints have been received about the
same individual. The investigator also should understand what
constitutes harassment under both your organization's policy and the
law, in order to evaluate the complaint properly.
Whenever possible, it can be helpful to have a person from management
outside the human resources department assist in the investigation.
In
addition, when the allegations involve sexual or gender harassment, it
is
a good idea to have both a man and a woman investigate the complaint
together. Some employers use an outside investigator or the Board
of
Directors if the complaint indicates that harassment is pervasive or
involves top management employees.
* The Investigation Process *
The process should provide a fair method for both sides to be heard and
to receive 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 this type of investigation and should be prepared to
deal with employee embarrassment and anger and be patient, but firm,
in explaining that 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 allow
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 minimize this contact.
Witnesses also should be interviewed as soon as possible. All
responses should be documented and, if possible, statements should be
reduced to 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 must be reported
immediately, should it occur.
* Focus on Fairness *
Harassment investigations can be difficult and time-consuming.
But,
they are a vital component of your harassment policy. If you
conduct
them properly, they can help ensure that your decisions are based on
facts and perceived as fair. And, in situations where you
determine that
your harassment policy was not violated, a thorough investigation will
provide strong support if you are challenged in court or by a government
agency.
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, notes 7 and 22.
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