The Resource is a legal newsletter for employers and human resources professionals.
For several months, sexual harassment in the workplace has been an almost constant topic in the news. Although high profile allegations were lodged against celebrities such as Harvey Weinstein, Matt Lauer, and Dustin Hoffman (to name just a few), the #MeToo movement made clear that illegal sexual harassment has the potential to affect every workplace. This article will provide guidance to employers regarding how to address any allegations of sexual harassment proactively in your workplace.
HAVE A WRITTEN SEXUAL HARASSMENT POLICY
The Equal Employment Opportunity Commission (“EEOC”), the federal agency primarily responsible for enforcing federal discrimination laws, has stated that an employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval of unlawful harassment, developing appropriate sanctions and informing employees of their rights to be free of harassment under Title VII.
The first step in reducing the potential of employer liability for sexual harassment incidents is to adopt and effectively communicate a strong policy statement regarding sexual harassment. This policy should include the following:
- a clear statement that sexual harassment will not be tolerated;
- a definition of what constitutes sexual harassment (see below);
- a statement that it is the responsibility of all employees to report either witnessing or experiencing sexual harassment;
- a statement that retaliation against any employee who reports harassment is prohibited;
- the names of and contact information for supervisors designated to receive harassment complaints;
- a statement informing employees that they need not report unwelcomed harassment to their supervisor if the supervisor is the harasser and identifying alternate contacts to be used in such situations;
- a statement that the investigation of any complaints will be prompt and thorough and as confidential as possible; and
- a statement that the company will take corrective action, up to and including dismissal of the harasser, if it finds that harassment has occurred.
The EEOC has defined sexual harassment as: “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
Company employees also need to understand that sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker or a non-employee (such as a vendor, customer, or contractor).
- The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser’s conduct must be unwelcome. It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop.
Your company’s sexual harassment policy should be distributed to all employees, and included in your employee handbook. In addition, employees should sign acknowledgments that they have read and understood the contents of the policy. For recordkeeping purposes, keep the signed acknowledgment in each employee’s personnel file.
EDUCATE YOUR EMPLOYEES
In addition to having a sexual harassment policy, you need to be sure that the policy is understood and enforced. In practice, this means that all supervisory employees should know what to do if an employee comes to them with a sexual harassment complaint. Remember, there are two different kinds of sexual harassment: “quid pro quo” and “hostile work environment.” Quid pro quo sexual harassment can occur, for example, when an employee is denied a raise or promotion because he or she rejects a supervisor’s sexual advances. An example of a hostile work environment would be where an employee is constantly subjected to inappropriate photos, lewd remarks and insults from co-workers, supervisors or other non-employees present at the work site. Both supervisors and employees need to understand the types of sexual harassment so that no one engages in prohibited conduct unwittingly.
BEGINNING THE INVESTIGATION
Hopefully, with proper training and understanding of sexual harassment, your company can avoid most claims. However, even companies who do everything “correctly” may experience a sexual harassment claim at some point. The most important thing a company can do to protect itself from liability is to investigate the claim and take prompt and effective remedial action. This means that your company must take the harassment complaint seriously and must act quickly to put an end to the harassment. Complaining employees who feel that their complaint was taken seriously are much less likely to file a discrimination charge with the EEOC and/or a lawsuit against the company.
As soon as your company has received a harassment complaint, appropriate management personnel should decide on the overall scope of the investigation with the company’s counsel. Before speaking with any witnesses, the company should decide the following issues: Who will participate in the investigation? Who will approach interviewees to inform them that an investigation is being conducted? How long will the company investigate the complaint? Anyone participating in the investigation should become familiar with the company’s sexual harassment policies. The investigators should follow any established procedures consistently to avoid charges of discrimination down the road. If either the complainant or the accused harasser have prepared written statements about the incident, the investigators should carefully review those documents. If desired, the company can have the parties and each witness prepare signed statements about their version of the incident.
GENERAL INTERVIEW GUIDELINES
Once you have determined the scope of the investigation, the next step is to conduct interviews to determine whether the alleged harassment occurred. Potential witnesses would include the complaining employee; the alleged harasser; supervisors and co-workers; observers; and any other witnesses identified by the complaining employee, the accused harasser, or other witnesses. These interviews do not need to be formal, but they should be conducted in a manner that reflects the seriousness of the allegations involved.
You may wish to have two interviewers present at the interview, with one assigned the task of taking detailed notes. You may begin the interview by introducing the investigators and
explaining what role they will play in the investigation. Next, you should disclose to witnesses why the interview is taking place. It is very important that you tell all witnesses (other than the alleged harasser) that no punishment or retaliatory action will be taken against them as a result of participating in the investigation. Finally, you should make witnesses aware that the allegations are very serious, that they must provide truthful information and that they are to keep the discussion confidential. Throughout the investigation, each investigator should take detailed notes of the interview.
Generally speaking, you may wish to begin the interview with open-ended questions, allowing each witness to give his or her version of each alleged incident. Next, ask follow-up questions to flesh out the details of any reported incident. In particular, you will want to hear from each witness exactly what occurred, where and when it happened, who was present and the order of events. Investigators should also be sure to find out whether any witness has kept notes or written documents relating to any alleged incident, and whether there are any other individuals who might have information. Finally, at the end of the interview, you should advise each witness that he or she can contact the investigators if he or she thinks of any other pertinent information later.
INTERVIEWING THE COMPLAINANT
When interviewing the complainant, investigators conducting the interview should take care to treat all allegations of harassment seriously, even if they seem trivial. The investigator should inform the complaining party that the company does not tolerate sexual harassment and that no retaliatory action will occur because the employee reported the alleged harassment. Next, investigators should try to obtain as many details about each alleged incident as possible. In particular, be sure to inquire whether the complaining employee has kept any notes, diaries or other recorded statements about any of the facts. Remember to ask whether the complaining employee made statements to others about the alleged harassment, so that you may interview those witnesses, if necessary. One very important factor in determining whether or not sexual harassment has occurred is to find out whether the alleged conduct was in fact unwelcome. Therefore, be sure to ask how the complainant responded to the harasser’s conduct. At the end of the interview, you may also want to ask the complainant what disciplinary action, if any, the complainant feels is appropriate. Finally, tell the complaining employee that the charge will be investigated and that he or she will be informed about the outcome.
During these investigations, complainants often ask investigators to keep the reported facts confidential. This is not always possible. Investigators should inform the complaining employee that the information will be kept as confidential as possible, but that information gathered during investigations may be shared with other company personnel or company counsel on a “need to know” basis.
INTERVIEWING AN ACCUSED EMPLOYEE
In addition to interviewing the complainant, you should also hear the accused harasser’s version of the alleged events. During this interview, you should inform the accused of each accusation of harassment cited by the complainant and give the accused harasser an opportunity to respond to the allegations. Just as you did with the complainant, you should be sure to inquire about the nature of the relationship of the complainant and the accused harasser to determine whether or not the conduct at issue was unwelcome. In particular, be sure to inquire whether the complainant ever told the accused harasser that his or her conduct or statements were unwelcome. If the accused harasser is in a supervisory position over the complainant, be sure that the accused harasser knows that he or she must avoid any conduct which creates even the appearance of retaliatory action towards the complainant.
If the accused party admits to the harassing behavior during his or her interview, the company can terminate the investigation and decide on the appropriate action to take. If the accused party will not participate in the interview or the investigation process, the company should inform him or her that the decision will be made based on information gathered from the complainant and other witnesses during the investigative process.
TAKING PROMPT AND EFFECTIVE REMEDIAL ACTION
After conducting an investigation, the company must decide whether or not the alleged harassment occurred. In making this determination, investigators should review all notes, documents and statements generated during the investigation. This determination should be made carefully, and the company should not jump to the conclusion that no harassment took place simply because the harasser denies any wrongdoing. Likewise, the company should not necessarily accept as truth the accusations of the complainant. Instead, the investigators must reach a decision based on all of the evidence before them. In making this determination, it is also a good idea to involve the company’s counsel.
After reaching a conclusion about whether or not the alleged harassment occurred, the company must decide on the appropriate action to take. If the investigators conclude that the alleged harassment did occur, the company must take steps that will prevent harassment from recurring. The nature of the disciplinary action will depend on the severity of the conduct and whether or not the misconduct appears to be part of a pattern. Investigators should also consider whether or not the complaining employee informed the harasser that the conduct was unwelcome. Appropriate disciplinary action could include a written apology, a formal written warning in the harasser’s personnel file, a transfer of the harasser to a different job or department, terminating the harasser’s employment or any other discipline prescribed by the company’s established disciplinary procedure. Company management may want to consider discussing the proposed disciplinary action with the complainant, as such discussions may help make the complainant satisfied that the disciplinary action is adequate. Please remember that in no event should the complainant be transferred or disciplined, as this could be viewed as a retaliatory action.
After the company has finished the investigation and taken corrective action, all interested parties should be informed of the decision. If the results of the investigation were inconclusive, the company should consult counsel to determine what, if any, action must be taken to protect its employees from unlawful harassment. If corrective action is taken, the company should follow up with the complainant to be sure that no further misconduct or retaliation has occurred. It is also a good idea after the investigation to follow up with the company’s employees generally to be sure each employee understands the company’s sexual harassment policies. In particular, it would be appropriate after an investigation for the company to issue a statement about its policies, or provide additional sexual harassment training.
NOT LEGAL ADVICE: This publication is not to be considered specific legal advice and should not be relied upon in lieu of advice from an attorney. Each client’s situation is unique, and if you have need for legal advice, you should seek advice from an attorney.