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.
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.
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.
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.
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.
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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