Investigating Sexual Harassment, Hostile Work Environment and Sexual Harassment Complaints
- Sexual Harassment - Receiving A Complaint
- Conducting a Sexual Harassment Investigation
- Selecting an Investigator for Sexual Harassment Complaints
- Remedial Action/Discipline After Sexual Harassment Investigation
- Evaluating An In-House Investigator for Sexual Harassment Complaints
- Our Law Firm On Sexual Harassment Complaint Investigations
Where a sexual harassment complaint has been made, a thorough investigation coupled with appropriate disciplinary action, if complaint is established, is an employer’s best defense to sexual harassment lawsuits. When combined with a good, well-disseminated sexual harassment policy with a clear complaint mechanism that by-passes that alleged harasser, employers are adequately prepared to defend harassment claims.
A thorough sexual harassment investigation typically involves the following steps:
- Placing the alleged harasser on suspension status immediately to prevent interference with the investigation
- Detailed interview of the victim supported by a written statement
- Detailed interview of the harasser
- Documented interview of witnesses to the alleged sexually offensive conduct
- Documented interview of other employees who have worked with the individual accused of sexual harassment
- Written and signed statements should be taken from the individuals interviewed. Each person interviewed should be advised of the non-retaliation policy
- A detailed summary of the investigation conclusion, and possible remedial action
Employers must be careful to select an appropriate investigator in each situation because the decision who conducts the investigation often determines the course of the investigation and remedial action as well as the employer’s possible liability in the case. Many times, an employer’s defense to a sexual harassment lawsuit hinges on the conduct of its investigator.
In selecting the individual to conduct the investigation, an employer has to carefully evaluate the various issues that may affect that individual’s objectivity. Office politics, established relationships, unclean hands of an investigator, personal friendships and interdepartmental frictions are factors that may affect the objectivity an in-house investigator.
Some employers actually incur liability, not necessarily for the sexual harassment, but from an improperly conducted investigation. In many instances, an investigator who has a long-standing relationship with the individual accused of sexual harassment, uses his power as an investigator to retaliate against the individual complaining and her witnesses. Often, the employer’s upper management is unaware of these personal relationships (typically outside of work) until such is revealed during litigation. When such personal relationships or office politics are involved, investigations are often slanted in favor of the harasser and against the victim and her witnesses.
In some instances, the victim and his/her witnesses are disciplined by the biased in-house investigator and no discipline is given to the harasser who is sometimes permitted to interfere with the investigation by intimidating witnesses and rounding up supporters for his cause. Mishandled investigations of this sort create difficulty for employers during litigation and could result in a guilty verdict and possible award of punitive damages. As such, the appropriateness of using an external investigator or law firm should be carefully evaluated.
If the sexual harassment allegations are confirmed, an employer should consider the following steps to effect proper remedial/corrective action
- Discipline should be imposed if allegations are confirmed
- For an employer with a zero-tolerance policy, terminating the harasser may be only appropriate measure in compliance with the policy
- If termination is not appropriate, then the following should be considered: demotion, unpaid suspension, transfer, shift change or pay reduction
Where an employer chooses to use an in-house investigator, it may be prudent to select a manager from a different branch who has minimal contact with the employees in the office where the harassment occurred. First, employee witnesses are likely to view a manager from a different office as more objective. Second, a manager from a different office is likely not to be affected by the local office politics. He/she is also likely not to have established relationships that may affect his objectivity in investigating and recommending discipline. Other criteria to review in evaluating an in-house investigator follow:
- Relative Position in the Organization (the higher, the better)
- Understanding of Sexual Harassment and Retaliation Laws
- Knowledge of Employer’s Sexual Harassment Policy
- Knowledge of the Employer’s Discipline Policies
- Knowledge and Training on Conducting Investigations
- Overall Objectivity, Fairness and Impartiality
- Good Understanding of Conduct that Amounts to Retaliation
- Ability to Devote Sufficient Time To Witness Interviews
- Overall Tact and Ability to Gain the Trust of Employees
- Ability to Communicate Findings to Upper Management Objectively
- Ability to Maintain Confidentiality of Sensitive And Personal Matters Acquired During The Investigation
- Our experienced sexual harassment employment attorneys can assist as necessary. Upon request, we help employers by using our staff to conduct a thorough and objective investigation. We will prepare a summary of the investigation and recommend appropriate discipline or other remedial action, if warranted.
Where the employer prefers to use its in-house staff to conduct the investigation, we can assist in suggesting a written investigation and follow-up plan. We will coordinate with the in-house investigator, prepare witness interview questionnaires, recommend names of witnesses to interview, and review witness statements and reports prepared by in-house investigators for thoroughness. We recognize that each situation is different and welcome an opportunity to propose a plan that is tailored to the specific issues presented.