“I’ve got a harassment complaint. Now what?”
Whether it’s an employee complaining of a hostile work environment, unwanted sexual advances by a co-worker, bullying in the workplace, or any other type of harassing behavior, ignoring such employee claims can be costly for employers. Harassment complaints that are not investigated, documented or handled correctly can lead to on-the-job performance issues with the complaining employee or — even worse — lawsuits that often include a claim of wrongful discharge or retaliation. So what’s an employer to do?
In this one-hour webinar, employment attorneys Kathy Neal and Sharolyn Whiting-Ralston provide practical tips for properly investigating a harassment complaint, dealing with the complaining employee going forward, and avoiding costly litigation.
- The benefits of investigating complaints (and the dangers of not doing so)
- The objectives of an investigation
- Selecting the investigator(s)
- Conducting employee interviews
- Preparing the final report
- Communicating the results, including any disciplinary action
- Dealing with the complaining employee once the investigation is over
- Handling performance issues or additional complaints of harassment or retaliation
Watch this webinar — Originally broadcast July 18, 2012
The following are answers to the most frequently asked questions submitted during the webinar’s live broadcast.
Q: What should an employer do if employees complain about harassment but are unwilling to submit a formal complaint due to embarrassment or some other reason?
A: You must investigate. Explain to the employee it is your obligation to do your best to maintain a harassment-free workplace, and that means addressing any issues of which you have notice. Assure him or her you will do your best to keep it confidential to the extent possible (don’t promise complete confidentiality) and that any retaliation will not be tolerated. Remember, once you are on notice—however that may arise—you have a duty to investigate and take the necessary action.
Q: What should an employer do if an employee submits a formal complaint and then says, “Never mind.” Should the matter still be investigated?
A: See the preceding answer.
Q: When you notify an alleged harasser that a complaint has been made against them, can you – or should you – tell them who made the complaint?
A: Generally, yes. As we talked about in the presentation, the accused needs to have the opportunity to provide her/his side of the story, including providing you the names of witnesses she/he feels you should talk with. She/he cannot do that if you do not provide basic information about the accusation. However, make sure to stress that no retaliation will be tolerated and that you and supervisors will be keeping watch to make sure it does not become a problem.
Q: Should private companies outsource the investigation to an investigation firm?
A: It is not necessary to use an outside investigator, but in certain circumstances it may be preferred. The decision depends on a variety of considerations, including cost, the type of operations, the nature of the allegation, past practice, and the individuals involved. For instance, if the person being accused of harassment is a high-level executive and the allegations are particularly troubling, an outside investigator may be the best option. Outside investigators can bring a level of neutrality to an investigation which may, in certain instances, be difficult to get from someone in-house. However, it may be beneficial having someone who knows the type of environment and the personalities involved. The decision to use an outside investigator is dependent on the circumstances of each case.
Q: What process should you follow if the employee who was accused denies the event and no witnesses are available?
A: You need to conduct the investigation to the extent possible. Interview the complainant and the accused, but also interview people who work in the same physical area and maybe a few people who work with the accused and accuser, including his/her supervisors. Document who you have spoken to and the information (or lack thereof) that you gathered. You will have to make some judgments as to credibility. If you still cannot make a determination one way or the other, document the file accordingly. Then, as with any investigation, advise the accuser and accused that you have been unable to make a determination, but you will be keeping close watch on the situation and will not hesitate to take action if necessary. Also, remind them both that no retaliation will be tolerated. Then, make sure to follow through—keep an eye on the situation and check-in with the accuser on a periodic basis.
Q: If a complaint is made regarding improper comments directed to a female employee, should the investigator interview all females in the workplace?
A: That is a judgment call and partially dependent on the type and size of the workplace. If you only have a few females, that may be practical, but many more than that and it probably isn’t. Instead, speak with the accuser and ask her for any potential witness, i.e. did anyone witness the comments made to her, has anyone else complained to her about the accused, has she ever witnessed similar comments being made by the accused to another woman? If she identifies people, start by talking with them (male and female). You may gather enough information that you need not talk to every female. The next step would be to talk with females who work directly with the accused, or who spend a lot of time around him.
Q: What problems are caused by promising confidentiality to potential witnesses?
A: It is highly unlikely that you can keep your promise. In most cases, in order to provide the accused with an opportunity to fully and fairly respond, you will need to provide him or her with the name of the person making the complaint. One of the key attributes of a good investigator is that he or she should have credibility and be able to gain the trust of the persons involved in the investigation. It is tough to have credibility and gain trust when you can’t even keep the promise of confidentiality. The investigator should promise he or she will keep matters confidential to the extent possible
Q: I understand we can’t guarantee confidentiality, but can we say we will share information only on a need-to-know basis?
A: Yes, providing information on a need-to-know basis or keeping confidentiality to the extent possible are two sides of the same coin. In fact, most people you will interview in an investigation do not need to know all the “gory details” of the allegations. You will likely be running down specific leads, like confirming whether a particular witness saw something or overheard something; you can keep the inquiry very specific. In all likelihood, only the person accused will be the only interviewee that needs to know complete details.
Q: Should witness interviews be recorded? If so, should they be transcribed verbatim?
A: You should at least have another person present to take notes while the investigator conducts the interviews. Recording an interview should not be done surreptitiously. Check to make sure that your state does not prohibit recordings under these circumstances. Be prepared for the tape recorder to make some witnesses more nervous and less frank. The witness interviews should be summarized as accurately as possible, the summary should be provided to the witness to review and correct, and then the summary should be signed by the witness. If you do record the interview, you may want to have the recording transcribed at some point, but you can always use the recording to back up the witness summary. It is nice to have a single or double-page paper with the witness’s signature on it to use at trial or arbitration as an exhibit. Transcripts are more cumbersome.
Q: Do you recommend that witnesses write out their statements?
A: If possible, the employer should control this process by preparing the witness statement and having the witness make changes or corrections before signing. If this is not possible, then have the witness provide a hand-written statement but make sure it is dated and signed.
Q: What should an employer do if the investigator refuses to provide the complainant with any information once the investigation has concluded?
A: The assumption here is that the employer has hired the investigator to conduct this investigation on its behalf. These are your employees, right? If you think it is appropriate to provide the complainant with information once the investigation has concluded, do it. Remember, you want to treat the complainant AND the accused fairly. A complainant who is involved in the process, who believes his or her employer has treated the complaint seriously, and who has conducted an investigation even-handedly, is less likely to file a charge or a lawsuit.
Please note this Q&A section is for informational purposes only; it does not provide legal advice and is not intended to create a lawyer-client relationship. In addition, we are not able to provide answers to fact-specific inquiries. Readers should not act upon the information provided below without seeking professional counsel.
This webinar was pre-approved for 1.0 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. Registration prior to the live event is required to receive HRCI credit for this webinar. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.
The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit.