The drumbeat of press reports about sexual harassment in the workplace over the last few months has increased awareness among employees that workplace harassment is illegal and actionable, leading employers to brace for an anticipated increase in sexual harassment complaints.
Employers can limit their liability exposure and damages markedly if they have harassment prevention programs and complaint avenues in place. Conducting effective workplace investigations is a critical component of any reliable system for proactively handling these challenging issues.
1. Advance Training. Employers should ensure that HR staff who will be conducting harassment investigations have received recent and thorough training. The training should include instruction on how to conduct an interview, what documents to create, how to record the results of the interviews, and what expressions to avoid (e.g. use of the word "harassing" or "harassment" as this is a legal conclusion).
2. An Established Process and Prompt Response. Employers should respond to a complaint of sexual harassment within 24 hours, if at all possible, by informing the complainant what process will be followed, including the overall investigation steps, who will lead the process and what is expected of the complainant. Failure to respond quickly can be cited as an example of the employer's lack of concern about sexual harassment generally and the complaining employee in particular, and a corresponding interest in protecting the alleged harasser. In order to respond promptly and comprehensively, the steps of a standard action plan should be established and written in advance. This includes who will be informed when a sexual harassment complaint is received (head of HR, legal, senior management, etc.). If HR staff will be conducting an investigation, decide in advance if the report will be prepared for and delivered to in-house or outside counsel under the attorney client privilege, or to management.
3. Who Will Conduct the Investigation? Employers should determine in advance, if possible, what types of complaints will be investigated by outside counsel or an independent investigatory firm. In general, complaints about senior managers and executives and/or egregious harassment allegations should not be handled by the HR department to insure impartiality and foster confidence in the fairness of the report/result. The employer may wish to consider retaining counsel who is not the usual outside counsel for employment matters, if the company is considering using the report as part of its defense. This will allow the attorneys who conducted the investigation to testify as to their process and conclusions without creating an ethical issue for the regular outside counsel who will be defending a discrimination charge or suit.
4. A Comprehensive Process. An employer should expect and provide the resources for the investigator to conduct a thorough investigation. Although a prompt response to a complaint is important, quickness should not equate to a rushed and incomplete investigation. The latter can result in criticism that the result was pre-ordained or botched – for either the complainant or the accused. This negative outcome can enhance an employer's liability exposure, rather than mitigate it, and will erode confidence in the process. Interviewing the complainant is often the best first step as it should identify any corroborating witnesses and documents, and has the side benefit of demonstrating prompt action by the employer to the complainant. The complainant should be informed of the anticipated timing of the process, but not the details of the process, and every witness should be assured that there will be no retaliation by the employer for complaining or providing information, as the case may be.
5. Confidentiality Issues. The complainant cannot be guaranteed confidentiality as to her or his identity or the details of the alleged harassment. At most, the employer can provide assurances that some details may be treated confidentially and not shared, except on a need-to-know basis. Being clear about this point from the outset with the complainant is an important reason to interview the complainant first. Witnesses who are employees can be instructed to keep their statements to the investigator confidential and not to discuss them with others.
6. Written Report. An employer should require a written report, in all cases. The extent of the report will vary with the circumstances. A report, particularly one delivered to counsel, may simply summarize the results of the investigation and relevant documents, including the interviews, and stop short of expressing a view about whether "harassment" occurred. A report prepared by counsel may do both and may or may not make recommendations.
7. Confront the Proof. If there is any lesson to be learned from current events, it is that strong, appropriate action is required in response to corroborated harassment. Numerous news reports describe serial harassers whose conduct was known to senior management or boards of directors, some of whom were aware of or approved settlement agreements with the accusers. Some of those companies are now facing shareholder derivative actions and regulatory investigations. In all cases, the reputations of the organizations are at risk. If the company takes no action, issues a "letter to the file", or the response appears weak compared to the extent of the harassment, at a minimum it will have a demoralizing effect on the female employees and, in the current media environment, may prompt a claim. If there is a subsequent credible harassment complaint, the employer's liability and damage exposure in the second case will increase along with the reputational damage.
In summary, investigating sexual harassment complaints is not something that businesses should improvise. Organizational leaders should take steps now to review and strengthen their internal processes and training, so they can effectively respond to complaints, especially in light of recent public visibility and increased awareness of these issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
