By Robin Thomas, J.D.
Recent court decisions emphasize that it is not enough just to have a written harassment policy. You also must make sure that it is implemented in an "effective" manner. This standard means you must be proactive and take steps to apply your policy properly. In particular, you must be prepared to conduct an investigation to determine the nature and extent of any alleged harassment.
Basic principles of harassment investigations
As a general rule, all harassment complaints should be investigated, even when the complaining employee requests that nothing be done or when the complaint is anonymous. The investigation should be undertaken promptly and completed as quickly as possible for several reasons.
First, the disruption caused by actual harassment or rumors can be substantial. In addition, as time passes, evidence can be lost and witnesses' memories often become less accurate and subject to change. Furthermore, the longer a resolution is delayed, the more stressful the situation becomes for both the complaining employee and the accused defendant. As a result, delays can lead to subsequent legal claims for emotional distress. And, evolving case law has established that employers are liable for failing to take prompt and effective action to eliminate known hostile work environments. Therefore, investigations should be completed within a few days, if at all possible.
Who should conduct the investigation?
Ideally, the investigator should be a human resources professional who is specially trained to conduct harassment investigations. This training helps assure that all important aspects of the situation are considered, including whether multiple complaints have been received about the same individual. In order to evaluate the complaint properly, the investigator also should understand what constitutes harassment under both your organization’s policy and the law.
Whenever possible, it can be helpful to have a person from management outside the human resources department assist in the investigation. In addition, when the allegations involve sexual or gender harassment, it is a good idea to have both a man and a woman investigate the complaint together. In other situations, another option is to use an outside investigator or a member of the Board of Directors if the complaint indicates that harassment is pervasive or involves top management employees.
The investigation process
The process should provide a fair method so both sides can be heard and receive necessary information. Most experts recommend interviewing the complaining party first to ensure that all important details and witnesses are identified promptly. Investigators should be sensitive to the emotional nature of this type of investigation and should be prepared to deal with employee embarrassment and anger. They then need to be patient, but firm, in explaining that precise details are needed for an accurate investigation.
The interview of the alleged harasser may be even more difficult because of the natural instinct of the accused to be defensive. Therefore, interviewers must be objective and nonjudgmental and encourage the accused to respond to each allegation. The investigator also should explain the disciplinary action possible if the allegations are found to be true. However, investigators should not use threats to obtain information, but should explain matter-of-factly the consequences of not cooperating. Both parties should be told to avoid contact with one another, and you should implement measures to facilitate this outcome.
Witnesses also should be interviewed as soon as possible. All responses should be documented and, if possible, statements should be put in writing and signed by the persons providing the information. In addition, all participants in the investigation should be reminded that their cooperation and confidentiality are required, that your policy prohibits retaliation, and that any retaliation must be reported immediately.
Focus on fairness
Harassment investigations can be difficult and time-consuming. But, they are a vital component of your harassment policy. If you conduct them properly, they can help ensure that your decisions are based on facts and perceived as fair. And, in situations where you determine that your policy was not violated, a thorough investigation will help build acceptance for your decision and provide strong support if you are challenged in court or by a government agency.
A free policy on workplace harassment covering all forms of harassment is available at www.ppspublishers.com/dcsexualharassment.htm.
Robin Thomas, J.D., is Managing Editor for Personnel Policy Service, Inc., 159 St. Matthews Avenue, Suite 5, Louisville, KY 40207, and can be reached at firstname.lastname@example.org, or 1-800-437-3735. Personnel Policy Service markets group legal benefit services and publishes HR information products, including the Personnel Policy Manual and HR Matters newsletter. This article is not intended as legal advice.