10-Step Guideline for Conducting a Harassment Investigation
HR Advisor feature article | December 2007
Such conduct can dampen employee morale, cause costly distractions, and result in expensive damage awards in court. It is imperative that, if faced with a harassment complaint, you must respond immediately.
The employer (including the business owner, president, partner, officer, etc.) will always be held liable for harassment that results in an unfavorable “tangible employment action” against the employee. Some examples involve undesirable demotions, decreased compensation and / or benefits, and involuntary terminations. An employer is also held responsible for acts of harassment in the workplace in which the employer should have know let alone know of the harassment. On the other hand, if able to demonstrate that it can respond quickly and resolve appropriately any claim of alleged harassment, the employer may avoid liability risks. In response to addressing a harassment complaint, the following steps will help ensure an effective and efficient resolution:
- Determine the Urgency: All complaints of harassment, whether formal or informal, and all reports and information about unlawful harassment must be promptly investigated. If possible, start the investigation within 24 hours from the point of knowledge.
- Plan the Investigation: Review the Employee Handbook and the relevant anti-harassment and anti-discrimination policies, especially those regarding Confidentiality and Retaliation. Decide when and where to conduct the interviews, and identify which third party person(s) you need to include during the meetings. Sometimes, safety and security protections may be an issue to consider. Meantime, gather written testimonials whenever possible.
- Interview the Accuser: Establish the meeting ground rules, review the specifics of the complaint, and record any verbal statements as well as any behavioral responses.
- Interview the Accused: Similarly, explain the purpose of the meeting and the investigation, establish the meeting ground rules, present the specifics of the complaint, allow the person to respond to each point, and record any verbal statements as well as any behavioral responses.
- Interview Any Witnesses: Again, approach similarly as you have done with the accuser and the accused. You want to gain information from those identified during the interviews and from those who can corroborate and provide any other relevant evidence. (Note that, due to the speed of certain events, you may find yourself gathering witness information prior to interviewing the accused. Be careful, however; as you contact more and more witnesses, you may begin to jeopardize confidentiality and thereby undermine the integrity of your eventual interview with the accused.)
- Research Other Sources: Investigate potentially related sources of evidence (i.e. the actual locations of the alleged events, the personnel / HR file of the accuser as well as of the accused, interviews with their managers, etc.)
- Review the Evidence: Establish a timeline of events, list all employees involved, and summarize the relevant evidence. Review notes and re-interview the accuser, the accused or others as needed to get clarifications or to resolve any discrepancies. Reach a conclusion as to the merits of the complaint, and document the findings.
- Consider the Remedies: Depending on the sensitivity and severity of the allegations, options include job site reassignment, time-off for the accuser, paid suspension for the accused during the investigation, and disciplinary actions up to and including termination at the conclusion of the investigation.
- Communicate the Results: Relay the clear facts to the decision-maker (e.g. the President, HR Manager, etc.), recommend appropriate penalties and remedies, and document the final decision plus the alternatives considered. Remember to adhere to your Confidentiality policy, and only inform those who have a need to know.
- Follow Up on the Investigation: Check with the accuser periodically to ensure no further problems exists, update and advise all relevant parties as necessary, and monitor the workplace environment to determine if any company-wide interventions should be adopted. For instance, require annual harassment prevention training for all employees.
Nowadays, simply posting a memo about harassment policy is no longer acceptable. The employer needs to develop, communicate, and adhere to an anti-harassment policy as well as a clear complaint investigation and resolution procedure. The more the employer can show such “reasonable care,” the better it can protect itself. As importantly, every employee expects and deserves a workplace environment free from harassment and conducive to one's professional growth. Unfortunately, an employee's willful intent or misinterpreted intentions can put an employer on its heels. Properly preparing now to effectively manage harassment claims can make the difference between prolonged litigation and speedy resolution.
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