Handling Sexual Harassment Claims: Taking Action

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Act Promptly

What constitutes "prompt" will vary depending on the circumstances of each particular case. Although courts recognize that it may take time to complete the investigation, the key factor is whether the investigation was initiated as soon as possible (preferably the same day) and whether the investigation was pursued diligently until completion.

It is important, however, for the investigator to ensure that no harassment continues while the current sexual harassment cases are pending.  Suspending the accused harasser or transferring the harasser to another position may be necessary while investigating sexual harassment cases.  Transferring the complainant should be avoided because the complainant may later claim that the transfer constituted retaliation.

The Investigator Must be Impartial

In selecting the proper person to conduct the investigation, be sure to consider whether the proposed individual can be objective to the laws on sexual harassment.  Any appearance of partiality should be avoided.  If the proposed individual can be accused of bias against the complainant or the alleged harasser, then it would be wise to select another individual.

Retention of an outside consulting firm or an attorney with a number of sexual harassment cases under their belt to conduct the investigation may also be considered.  Some employers choose to use a male-female team to conduct the investigation to bolster the appearance that the investigation was conducted in an evenhanded manner.  Be sure that the investigator selected has been properly trained to conduct investigations.  Also, it is important to remember that the investigator would be a key witness in any sexual harassment law suit that may eventually be filed either by the complainant or the alleged harasser.  For that reason, it is important that the investigator appear credible.

Gather All Evidence of Harassment

In conducting an investigation, employers should obtain as many facts as possible.  All relevant documents should be reviewed, including the personnel files of the complainant and the alleged harasser.

The investigator should determine the order in which the interviews of the complainant, the alleged harasser and the witnesses take place.  Typically, the complainant should be interviewed first, then the witnesses and then the alleged harasser.  This will allow the alleged harasser to respond not only to the Complainant's allegations but also to any additional allegations that surface during witness interviews.  Additional interviews of the sexual harassment on the job complainant and the witnesses may be necessary as additional information is obtained.

When interviewing the complainant, some employers choose to ask the complainant to complete a pre-printed sexual harassment filing form.  It is important to remember, however, that if the complainant refuses to complete such a form, the employer must nevertheless proceed with the investigation of the sexual harassment at the workplace.  Even if the complainant completes such a form, the complainant should be interviewed to allow the investigator to obtain more information and provide the investigator with an opportunity to assess the complainant's credibility.

In addition to interviewing the complainant, the employer must interview the alleged harasser and all witnesses.  Some courts have criticized employers for failing to interview employees even though those employees were not alleged to have been eyewitnesses to any of the alleged harassment.

All interviews should be thoroughly and consistently documented.  In light of the increased level of scrutiny given to investigations of harassment complaint, employer should be careful about the documentation arising from an investigation.

Prevent Acts of Retaliation Towards the Claimant

Companies must take steps to insure that the complainant is not retaliated against for reporting the harassment and that no witnesses are retaliated against for participating in the investigation.

Complainants may claim that the "remedy" for the harassment was retaliatory if it involved reassignment of the complainant to a "lesser" position.  If reassignment is necessary to separate the complainant from the accused harasser, the accused harasser, not the complainant, should be reassigned.  Some courts have held that transferring a complainant does not constitute retaliation if the transfer was done at the request of the complainant.  However, in such circumstances, the employer may eventually be faced with a claim by the transferred employee that her consent to the transfer was coerced.

Complainants or witnesses may also claim to have been retaliated against by co-workers who behave in a negative manner upon learning of their involvement in the harassment complaint. Companies should take action to prevent this form of retaliation.  When interviewing the complainant, the alleged harasser, and witnesses, the employer should remind these individuals that retaliation will not be tolerated.

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