If you’ve ever had to deal with a workplace sexual harassment complaint, you know how tricky they can be. Sexual harassment in the workplace may be defined as a form of sex/gender discrimination against another that includes unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature. Harassment is illegal when it is so frequent or severe that it creates a hostile, toxic or offensive work environment or when it results in an adverse employment decision.
One common element of the federal and most state laws is that an employee must first complain about the harassment. The process of making the sexual harassment complaint is often detailed in an employment or personnel handbook that the employee should have received upon joining the organization.
What should a company not do when it receives a sexual harassment complaint?
Discipline the Victim of Sexual Harassment
Oftentimes, a company’s initial response to a sexual harassment complaint is to “get rid of it” quickly. This can be done by transferring the victim to another role or position. Grounding the victim’s career by leaving them in a position where there is no opportunity for growth, opportunity to add value, or be relevant in the large scheme of things in the company. Perhaps the position or location is farther from the employee’s house, has fewer advancement opportunities or requires a skill set that the employee does not have or does not need, thus leading to poor performance evaluations down the road, and a waste of time and potential.
Although possibly “well-intentioned”, this action can create the potential for adverse employment action and needs to be avoided. This is a big mistake and can earn the employer an additional retaliation claims under federal as well as many state anti-discrimination laws.
Face to Face Meeting with Harasser
It is hard enough for an individual who feels harassed, uncomfortable and threatened to come forward pursuant to a company policy, however, it is insensitive for a company to force the victim of sexual harassment to essentially sit down in a room with the harasser and confront him or her, or to continue to work under the harasser without due protection. Regardless of a company’s philosophy on investigations and “working it out”, a company should never force a complainant to confront the harasser unless and until both parties are willing participants.
Do victims stand a chance if the direct report is one in the list of harassers, or the harasser?
If the company policy requires reporting up and the harasser is the victim’s direct report or is also a harasser, there should be an alternative means of reporting for the employee. Sexual harassment complaint should be handled with discretion to avoid retaliation. For more on retaliation, click here.
Immediate Termination of Harasser
In this economy, companies have legitimate business reasons for laying off workers. Although this is extremely rare, on occasion a “victim” will either exaggerate or completely make up a story to retaliate against a company they do not like or to try to gain unearned and undeserved compensation from their current or former company.
Immediately terminating the alleged harasser without first performing a proper sexual harassment investigation is wrong and could be illegal. Perhaps a suspension with pay and a prompt investigation is in order depending on the circumstances.
Ignore the Claim
This is a very risky proposition, especially if there is a history of sexual harassment complaints against the employee.
Although it may seem obvious, one thing an employer should not do is ignore a sexual harassment complaint. This may happen in a company where the senior executives and even board members are aware of previous incidents of harassment by the very same offender, however, this harasser happens to be the “rainmaker” and brings the company a ton of business. Perhaps the company continues to employ the harasser as it has made a business decision that the risk of lawsuits and a hostile work environment is outweighed by the benefit of retaining such a rainmaker.
This is a very risky proposition, especially if there is a history of sexual harassment complaints against the employee. It is not suggested behavior; however, it is understandable and often practiced.
Continue without a Policy on Sexual Harassment
Again, this may seem obvious, but it is important for all employers big and small to have sound policies in place, especially sexual harassment policies. There are local, state and federal laws that govern companies of all sizes, from one employee to 1,000.
If a company does not have a policy in place in this day and age, it says that a company does not care about the employment laws that govern its actions nor the people who work there and is therefore grounds for awarding a successful plaintiff much greater damages.
So, that’s what you shouldn’t do in response to a harassment complaint. What should you do?
- Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop it from happening again. Endeavor to be discreet in order to avoid retaliation on the victim by the harasser and/or his friends.
- Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
- Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
- Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
- Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues or if the accused retaliates against the victim, however, the discipline must get progressively harsher. If you tell an employee that termination is the next step, you must be prepared to follow-through.
And, please, please, please, make sure that your employee handbooks have an anti-harassment policy, and that you are training your employees on it.