As you likely know, Massachusetts mandates that all employers, employment agencies and labor organizations with six or more workers have a specific sex-harassment policy in place. The legislature enacted this law to promote a workplace free from sexual harassment.
Once a complaint of sexual harassment is filed, what is the employer’s responsibility? Below I address some of the Do’s and Dont’s of investigating allegations of sexual harassment.
It should be noted, an employer has a duty to investigate when an employee files a sexual harassment complaint. However, even before receiving an actual complaint, prudence requires that employers identify instances of harassment, protect future victims, avoid liability and maintain an enjoyable work environment.
If a complaint is received, how should the employer proceed? First, obtain a copy of the company’s sexual harassment policy. Then obtain copies of any written acknowledgement that the person complaining and the accused have read and understood the policy. Thereafter, document to whom and when the complaint was made. Determine if the complaint was made following established policies and procedures, and if not, why. Make sure that you have the complaining person’s complete version of the facts, for example, all the dates of harassment, witnesses, and so forth. Identify when and where the sexual harassment policy is posted in the work area. Determine whether awareness training has been conducted, and if so, secure any attendance lists associated with the training. Secure a current organizational chart and, if different, an organizational chart for the time period involved in the complaint.
You need to choose an appropriate investigator. One who is neutral and objective, capable and properly trained, who understands the role and issues under investigation and who is a credible and effective witness should the matter need to be supported at a judicial hearing. You may consider an outside investigator or an investigation by an attorney or by a professional under an attorney’s direction.
Plan to conduct a detailed investigation that gathers detailed evidence of the circumstances and nature of any complaints or protests. The investigation should begin with identifying documents to be reviewed. These would include a review of the complaint, company rules and policies, statements from witnesses, physical evidence, relevant business records such as time cards, calendars, logs, etc., personnel files, and prior complaints and investigations. You also need to identify potential interviewees, the order of such interviews, where the interviews will be conducted and the format for recording information.
When documenting, try to preserve what is called the work-product privilege if possible, by labeling such documents “attorney work-product”. Of course, this can only be done if it is the case. Do not document an investigator’s opinion or conclusion, including conclusions about credibility. Do not document conclusions regarding the merits of the complainant’s charge in the investigation report; instead, objectively recite the fact-finding process. Do not mention any communications with counsel in documents in order to preserve the attorney-client privilege of the communications.
After the investigation, the employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by resorting lost employment benefits or opportunities, and prevent the misconduct from recurring.
After the investigation, hopefully the employer can determine the merits of the complaint. If so, the employer’s role is easy as it has identified the “problem” and can take corrective measure. If however, the investigation is inconclusive, the employer must assure the complainant that although no finding could be made on the claim, the employer intends to protect him/her and all employees against unlawful harassment and retaliation. Further, advise the alleged wrongdoer that although the truth of the claim has not been determined, all employees are expected to comply with the company policy, including policies against harassment and retaliation. If harassment was found to occur there are a host of remedies available to the employer depending on the severity of such harassment. There are of course actions the employer may consider if there have been false accusations.
This article addresses a basic format employers could consider when investigating a claim of harassment, however, it is merely an outline format and certainly non-inclusive of all the options and recommendations employers should/could take in a given circumstance.
Harassment claims must be taken seriously by the employer and dealt with professionally and promptly.