When it comes to sexual harassment training, you want to spend a little extra time with supervisors and any other individuals who manage other employees. In fact, some states require this training every few years. It should provide deeper insight into employer liability, investigation best practices and retaliation in a way the training for general employees does not.
The company is always responsible for harassment by a supervisor that results in a tangible employment action. But even if it doesn’t, the employer may still be held accountable unless it can prove it exercised reasonable care to prevent and promptly correct any harassment and that the employee unreasonably failed to take advantage of the company’s complaint or corrective policy and procedures.
How to Investigate Harassment
When an employee files a harassment complaint, train supervisors to act immediately. Taking prompt action and conducting a thorough investigation is best for everyone involved.
1. Protect the Alleged Victim
It may be necessary to separate the potential victim from the accused to prevent further harassment or retaliation. Consider transferring the accused party to another position or placing him or her on administrative leave with pay pending the investigation. Be careful about relocating the accuser because that could be interpreted as retaliation.
2. Decide on an Investigator(s)
When it comes to choosing an investigator (or team of investigators), employers typically select experienced HR professionals, legal counsel (inside or outside) or a third party investigator. It’s best to select these individuals before you’re dealing with an actual claim. They should neither have a relationship with any of the parties involved nor a stake in the outcome. Your state may have special rules regarding who may conduct workplace investigations so always double check those.
3. Create an Investigation Plan
In order for the investigation to be detailed and efficient, you and/or your team of investigators should create a plan. It should include specifics about the issue, a potential witness list, strong interview questions and a process for retaining relevant documents.
4. Conduct Interviews
Begin by interviewing the accuser and let him or her know that you will be reporting everything to the human resources department but will maintain as much confidentiality as possible with others who may be involved. The main job of the interviewer is to gather facts while maintaining objectivity.
Investigators should look for discrepancies in stories and document everything in the event the case ends up in court. At the end of each interview, the investigator should summarize each person’s report and, if possible, submit it to the interviewee for approval and acknowledgement.
5. Decide on Validity and Corrective Action
Once the investigator has completed all the interviews and gathered all the known evidence, he or she should make a decision about whether or not the case is valid. The investigator will also make a recommendation for employment actions against the accused (if the interviewer finds the accused guilty). Corrective action can include everything from training, written warnings, reassignment, suspension or even termination.
The corrective actions should be appropriate to the level of the offense. For example, remedial training may be appropriate for an employee whose offense is limited to mildly inappropriate comments, while termination may be appropriate for an offender who has made inappropriate physical contact or demanded sexual favors in return for beneficial treatment.
In a “he said, she said” case with few witnesses, investigators may find harassment claims inconclusive. In response, the company should consider a revamped company-wide anti-harassment and anti-discrimination training program.
Take steps to remedy any loss the complainant may have suffered because of the harassment, such as the denial of promotions or lost wages. If the investigation does not lean in favor of the accuser, ensure that he or she feels as though the investigator handled things fairly. Continue to follow up until the complainant is comfortable again.
6. File Written Report and Audit Process
Ensure all evidence obtained during the investigation is preserved. Federal regulators require that employers keep personnel records (including performance and disciplinary notices) for at least three years after termination or the duration of any claim or court case involving the employee.
The best time to review your company’s harassment policies and procedures is when you’ve just completed an investigation. What went right? What went wrong? Use it as an opportunity to look for ways to improve the process.
Employers can be proactive about avoiding charges of retaliation by:
- Communicating with human resources professionals prior to taking an adverse action.
- Documenting the reason for any adverse employment action against an employee.
Do you have additional questions about how to protect yourself and your employees? Be sure to check out our webinar on sexual harassment in the workplace.
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