Third of a three part series: Harassment in the Workplace
Written by: The Deerfield Team
You did everything right. You read parts 1 and 2 of our series, so you know what harassment is and how to prevent it. You’ve disseminated a perfect anti-harassment policy, run fantastic trainings, and carefully vetted new hires. Then one day an employee walks into your office claiming that your best manager has been harassing her for weeks.
Prevention might be the best medicine, but it isn’t a cure-all. You must be prepared. Learn how to investigate harassment allegations—including conducting interviews, avoiding retaliation, and resolving the issue—before you hear that knock on your door.
The Art of Investigation
Once you are aware of a harassment complaint, you are responsible for conducting a prompt, thorough, and impartial investigation. This means interviewing the people involved to determine what happened and whether harassment occurred. Simple as it sounds, an effective investigation requires a lot of skill and wisdom.
- Initiate stopgap measures to prevent harassment from continuing in the meantime. (Make sure these measures don’t burden the complainant.)
- Choose an investigator who is not close with or a supervisor to the employees involved, knows the law about harassment, and is skilled in interview techniques.
- Focus on behavior—what was done, said, and seen—not opinions during interviews.
- Look for evidence: recovered emails, receipts, witnessed statements.
- Keep detailed, fact-centered notes throughout the process.
- Foster a sense of privacy during the interviews. Don’t conduct interviews over barriers like desks or tables.
- Remind everyone involved that retaliation is strictly forbidden.
- Be sensitive to the emotional pressures being felt by all parties. Remain open and gentle.
- Ask the complainant what outcome they would like to see happen, without promising they will get the desired outcome.
- Make sure you respond consistently to all harassment allegations, from the speed of the investigation to the disciplinary actions taken.
- Document everything.
- Ignore a third party or anonymous complaint.
- Wait to start the investigation after a complaint has been filed.
- Forget to familiarize yourself with EEOC guidelines before conducting an investigation.
- Totally stop communication with complainant or alleged harasser during the process.
- Ask the complainant to reach out to potential witnesses.
- Expect straightforward evidence or perfectly accurate testimonies from either side.
- Promise the interviewees total confidentiality, but do try to keep information as confidential as possible.
- Express opinions or make assumptions about the complainant or alleged harasser until the investigation is finished.
The Biggest Don’t: Retaliation
Even employers and managers with the best intentions can do things that may appear as retaliation. Make sure to avoid negligent and accidental behaviors yourself and train everyone involved in the investigation to control their response as well. Make sure to manage resentment, prevent avoidance, deal with frustration, and ultimately avert a lawsuit. Read our blog post, Retaliation claims and what you need to be aware of to prevent them, for more information.
If the Investigation Was Inconclusive
If you couldn’t find evidence for or against the complainant’s allegation, let them know. Thank them for coming to you with the complaint and encourage them to report any future harassment. Make sure to keep up with this employee to make sure everything is all right. Let the accused also know that the allegations could not be substantiated, so they will not be subject to discipline. Remind them of your anti-harassment policy and invite them to share any evidence for their innocence they might find in the future.
If Harassment Did Not Occur
If you find out that harassment did not happen, assume that the accuser was mistaken, not lying, and let him or her know that unfortunately you could not substantiate the allegation. Inform the alleged harasser that they are no longer under investigation but that they are still beholden to the harassment policy in the future. In the rare case that you find irrefutable evidence that the accuser set up the alleged harasser intentionally, talk to an employment lawyer.
If Harassment Did Occur
If your investigation shows that harassment did occur, take action. Do whatever it takes to prevent it from happening again and make sure the victim is free from any negative effects of the harassment. Enact disciplinary measures against the harasser according to the seriousness of the harassment. This is determined by factors such as level of physicality, repetition of offense, how much authority and seniority the perpetrator had compared to the victim (the more, the harsher the punishment), and the effect on the harassed.
Unfortunately, prevention is not enough when it comes to harassment in the workplace. Conducting a prompt, thorough, and fair investigation with the appropriate follow-up is key to maintaining a safe environment and the trust of your employees. A well-documented investigation is also key to protecting yourself from vicarious employer liability.
As always, we are here to help you any way we can. Please don’t hesitate to call or email if you need us.
The Deerfield Team
Cooper, Lauren M. “Top Ten Tips for Conducting an Effective Sexual Harassment Investigation.” http://www.hrhero.com/hl/articles/2012/07/31/top-10-tips-for-conducting-an-effective-sexual-harassment-investigation/
“Interviewing Techniques for Harassment Investigations.” http://reid.com/pdfs/hitpreview.pdf
“Investigating The Complaint.” University of Pittsburgh Office of the Provost. http://www.provost.pitt.edu/information-on/InvestigatingTheComplaint.html
“Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisor.” The U.S. Equal Employment Opportunity Commission, April 1 2010. http://www.eeoc.gov/policy/docs/harassment-facts.html
Shea, Robin. “ ‘Must-haves’ for your harassment investigation no. 3: A prompt, thorough, and fair investigation.” Employment and Labor Insider, June 5, 2015. http://www.employmentandlaborinsider.com/harassment/must-haves-for-your-harassment-investigation/
Shea, Robin. “Harassment ‘must-have’ no. 4: The Determination.” Employment and Labor Insider, June 12, 2015. http://www.employmentandlaborinsider.com/harassment/harassment-must-have-no-4-the-determination/
Shea, Robin. “Harassment ‘must-have’ no. 5: No retaliation!” Employment and Labor Insider, June 19, 2015. http://www.employmentandlaborinsider.com/harassment/harassment-must-have-no-5-no-retaliation/
This article is intended only as a general discussion of these issues & we cannot guarantee the accuracy thereof. It does not purport to provide legal, accounting, or other professional advice. If such advice is needed, please consult with your attorney, accountant, or other qualified adviser. The Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Accordingly, the information provided herein is provided with the understanding that Deerfield Advisors is not engaged in rendering legal advice. Deerfield Advisors strongly advises that clients and/or the reader of this publication contact an attorney to obtain advice with respect to any particular issue or problem discussed here. Also, please know that discussions of insurance policy language is descriptive only. We strongly advise that one’s individual policy & one’s advisor be consulted regarding this subject matter before any action is taken in any way. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. The Deerfield Advisor White Paper Series is a registered trademark of Deerfield Asset Management Inc. DBA, Deerfield Advisors and is produced by Deerfield Advisors for the benefit of its clients, and any other use is strictly prohibited. All rights reserved. Copyright © 2015