- June 5, 2012
- Posted by: Seth Heyman
- Categories: Business Law, Employment Law
You think it could never happen to you, but then it does: an employee files a sexual harassment complaint. How you proceed is critical in minimizing the legal risk your company faces. As an employer, you must investigate the claim promptly to sort out the facts and ensure any action taken is in accordance with your company policy . The following are some steps you should take in investigating the claims:
1. Document the Process: From the moment an employee makes a sexual harassment claim, it is important to document the complaint and the measures you are taking to investigate and resolve the issue.
2. Investigate: If you have access to an outside HR professional or attorney, they should be assigned the task of investigating the claim. Ideally, the investigator should be an unbiased individual familiar with your policies related to sexual harassment and disciplinary action. However, if your company is small, you may be the most suitable investigator.
3. Limit contact: Contact between the individuals involved should be limited as much as possible until the investigation is completed and a decision is rendered. If the accused is in a position of authority over the accuser, consider transferring him or her to another department until the investigation is complete. Take care that the transfer cannot be viewed as retaliatory. Ensure that no reduction in pay or benefits occurs as a result of the transfer, and, if possible, that the level of responsibility remains the same.
4. Interview: Interview both the employee making the complaint and the accused, as well as any witnesses.
For each interview, assure the employee that retaliatory actions are strictly forbidden, and any such incidents should be reported. Make certain you make it clear that the discussion will be confidential. Ask basic questions (who, what, when, where, and how). Document all of the information obtained during the course of the interview, as well as your thoughts regarding the credibility of the interviewed person’s account.
5. Compare: Review all statements taken and investigate further any conflicting points.
6. Make a decision: When you feel you have thoroughly examined the the matter, ask yourself the following question: did the conduct occur and, if so, does that conduct violate your sexual harassment policy? Make your decision based on the answer. Potential repercussions exist regardless of the decision you make, so it is important to carefully follow your written policy in determining if disciplinary action is appropriate and have thorough documentation to support your decision.
7. Follow up: Among the intended goals of conducting a thorough investigation is ensuring employees feel the workplace is safe and restoring employee morale to a healthy level. Communication is key in achieving this goal. Follow up with the complainant to advise him/her how the situation is being resolved and to make certain no further incidents occur and they have not been the recipient of any form of retaliation.
8. Retain: Retain all records relating to the incident in a file separate from the personnel files. The only records relating to the incident that should be found in the personnel file is the recommendation for disciplinary action, if applicable.
Following the investigation and decision, you may want to remind all employees of proper conduct guidelines and provide training to prevent sexual harassment. Ideally, however, training and communication are effective preventative tools, so it is important to regularly communicate your policy regarding sexual harassment to your employees throughout the year, not just in reaction to a complaint.