Sexual harassment is a pervasive problem in workplaces in the United States. According to a recent study, 1 in 3 women between the ages of 18-34 have been sexually harassed at work. Yet, 70% of women who have been harassed in the workplace do not report it to HR. During Sexual Assault Awareness Month, we wanted to shed light on this prevalent issue by sharing with HR professionals tips on conducting a sexual harassment investigation.
Sexual harassment in the workplace isn’t always easy to spot. The American Association of University Women defines workplace sexual harassment as any “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.” Sexual harassment can take the form of a sexual comment made in a meeting or an insinuating Facebook message from a co-worker.
Prevention of harassing behavior is the ultimate objective. Effective and immediate intervention serves to minimize injury to the victim and send a clear message throughout the workplace that harassment is not tolerated.
Check out HR Hero’s 10 tips for conducting an effective sexual harassment investigation:
- Promptly report the employee’s complaint: Supervisors should immediately report any complaint of sexual harassment to the HR department or any other individual identified as the person with ultimate responsibility for enforcing the company’s policies against unlawful harassment.
- Promptly initiate the investigation: You may have all the right policies and your investigation may be thorough, but it’s difficult to argue that you take harassment complaints seriously if you wait two months to start an investigation. Initiate investigations immediately, and complete them as soon as possible.
- Be familiar with EEOC guidelines: A favorite tactic of employees’ attorneys is to attack an employer’s investigation by showing how it fell short of the Equal Employment Opportunity Commission’s guidelines on how to conduct an effective inquiry into unlawful harassment. The guidelines include advice on how to reach credibility determinations, protective measures to take during the investigation, and specific questions to ask the victim, the accused and any witnesses.
- Develop adequate documentation: Every investigation should be documented with the worst-case scenario in mind. Reports should be thorough and thoughtfully written. Ideally, witness statements should be signed by the witnesses. When offering conclusions about a witness’ credibility, the investigator should set forth the objective basis for his or her determination.
- Interview all potential witnesses: You should ask the victim to identify any witnesses who might have relevant information. Also, you should interview coworkers of the accused, who may be able to provide information about whether they have seen him or her engage in similar conduct. If coworkers have witnessed the alleged harasser engage in sexual harassing conduct in the past, it can have a huge impact on the outcome of the investigation.
- Take interim remedial measures during the investigation: Too often, employers focus only on which remedial measures to take after the investigation is complete. However, depending on the circumstances, you may need to take temporary remedial measures during an investigation. For example, you may want to separate the victim from the alleged harasser until the investigation is complete.
- Take steps to avoid retaliation: Everyone concerned, including HR representatives, supervisors and managers, should be extremely sensitive to the rules prohibiting retaliation. In most cases, conduct that could be viewed as retaliatory, whether it’s committed by the accused or others, can lead to additional liability. It’s imperative to let everyone involved with the case know that you will not tolerate any form of unlawful harassment or retaliation against the individual who made the claim, or anyone who participated in the investigation.
- Remember that confidential complaints still count: Every employer has probably confronted this problem at least once: An employee complains to a supervisor that a coworker engaged in inappropriate conduct but asks the supervisor to “keep it between us for now.” That’s usually because the employee fears retaliation. In this situation, the supervisor should explain to the employee that the company will do everything possible to keep the matter confidential, but it faces legal liability if it doesn’t investigate every complaint. You shouldn’t promise absolute confidentiality but instead state your intent to provide confidentiality to the extent practical.
- Avoid prejudging complaints: Until a claim is fully and carefully investigated, you shouldn’t form conclusions about guilt or innocence. To ensure a completely unbiased investigation, be sure it’s conducted by an individual who doesn’t immediately supervise or have a close relationship with the complaining employee, the accused, or any key witnesses.
- Be consistent: All complaints, even seemingly minor ones, should be investigated thoroughly, and similar incidents should result in similar discipline. One of the most common mistakes employers make is to protect a high-level executive, top producer or favored employee who has been accused of harassment while implementing more serious discipline against other employees accused of similar conduct. While the law allows employers fairly wide latitude in determining the appropriate level of discipline, it is critical that like cases be treated alike, regardless of the relative “stature” of the parties involved.
Whether an employee comes to you with a seemingly small gripe or complaint about egregious conduct, you are legally required to look into the matter and engage in a prompt and thorough investigation. For tips and training on how to conduct sexual harassment investigations, contact your EFR Account Manager.