Paul Horton: Employers and Harassment Claims

The Pendulum swings. Recent times have demonstrated just how far. Earlier, sweat shops led to child labor laws. Decades of racial discrimination led to quota systems. Of late, claims of “sexual harassment” and “hostile work environments” have led to laws and lawsuits that make employers wonder what they can do to avoid both claims and lawsuits. The purpose of this note is not to discuss “the why,” but to educate employers as to the “what to do.”

Listen Here Employers to an Employer Lawyer

First, tell employees, in writing, that as their employer, you will not tolerate harassment. Tell them “harassment” is not limited to just unwelcome sexual advances or requests for sexual favors. Besides inappropriate verbal, graphic, or physical conduct of a sexual nature, it includes slurs, jokes, and other offensive comments concerning an individual’s race, color, sex, religion, national origin, age, disability, or marital status.

Tell them that if an employee believes he or she has been subjected to harassment, the employee must report it. Not may. Not should. Must.

Next, have related procedures in place and made known to all employees, including management. The procedures have to tell all employees how they are to report their claims and direct your management staff members on how to handle (evaluate, investigate, and resolve) the allegations. Be sure all employees are given the instructions, even if they are located at a two-person branch office at a remote location.

HERE ARE REAL WAYS YOU CAN BEAT HARASSMENT CLAIMS

Follow through IMMEDIATELY on all claims and allegations. Speed (rationally applied) cannot be overemphasized in the sense of response or reaction time by an employer.

Identify the issues. Conduct the investigation. Analyze the findings. Adopt and implement a response or determination, including taking corrective action.

In the meantime, separate the involved parties. In doing so, do not show favor to the alleged wrongdoer – even if the position held has greater importance to your company’s productivity and profitability. If the accusations are serious, you may need to suspend the alleged wrongdoer with pay, until the process has been completed. I know you may not want to do this part, but as an employer lawyer, I’m telling you, this is one of the best practices.

The first step is to gather information from the complainant. Encourage open communication by confirming the employer’s anti-harassment policy. Emphasize there will be no retaliation. Conduct an interview and obtain a written statement. Do the same with all witnesses. Request all possible tangible evidence (i.e., diaries or journals, photographs, “love letters,” cartoons).

After gathering the information, inform the alleged wrongdoer of the nature of the charges, and obtain his or her response. Again, interview the employee and obtain a written statement. In doing so, repeat the employer’s anti-harassment policies, and request other possible evidence relevant to the investigation.

As to all of the involved employees, make three things clear: (1) you are only investigating the claim and will not pre-judge its merits; (2) they are to keep the investigation confidential; and (3) they are not to interfere with the investigation by speaking to others about it.

After interviewing the accused and obtaining his or her statement, you will probably reconvene with the complainant to cover factual and even legal points made in defense of the alleged wrongdoer.

Each claim must be assessed by the employer as to where it may lead. Some can be handled easily – your designated human resources employee or in-house counsel may undertake the investigation. Regardless of whom you select, make sure the procedures are followed, and the documentation is done with at least moderate formality.

Some claims or allegations may warrant bringing in a third party for assistance. Often, outside legal counsel are brought in. Typically, they are skilled interviewers and can provide objectivity. Or, legal counsel may provide direction to other independent investigators, such as human resource consultants.

Who should not be the investigator? Supervisors or managers should not conduct their own investigations. Even if they could perform adequately, you need to avoid all appearance of bias. Thus, friends or relatives also should not be considered.

The final step for the investigator is to analyze his or her findings and prepare a report or recommendation of possible action. If wrongdoing is found to have taken place, the report should reflect a violation of company policy, without labeling the employee as being “guilty” of harassment. Still, you need to impose an appropriate discipline. For anything other than minor infractions, you should not give only a warning with the admonition, “do not let it happen again – or else.” The “or else” needs to be implemented.

If you do not find that a violation has occurred, or has been proved, and there is to be no disciplinary action taken, you should have legal counsel review the documentation and discuss the claim with the investigator. Be sure that none of the involved parties obtains the impression that he or she was not believed, or that you found for or against him or her. Further, be certain to follow up with the parties to make sure there are no more perceived problems or allegations of retaliation.

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