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Addressing Sexual Harassment in the Workplace

posted Dec 21, 2017, 11:23 AM by Adam Chandler
Guess what?  Just when you think you know somebody at work, you might learn something monstrous about them.  Denial is not the answer.  O’Reilly, Weinstein, Spacey, Rose, Lauer – over the past couple of months the news has been filled with stories of sexual harassment and assault in the workplace.  While these cases have arisen out of the realms of politics, journalism, and entertainment, sexual harassment can and does happen in every industry.  These and other very public examples serve to shine a light on a widespread problem.  Now, more than ever, employers need to be vigilant against such conduct in the workplace.

Combating sexual harassment in the workplace begins with a culture of respect and responsibility.  How do  you build that kind of culture?  You get what you incentivize, and it starts with strong anti-harassment policy and training.  But it does not end there.  Such policies can provide employers with good coverage against harassment claims, so long as the harassment was not committed by or known by someone with supervisory authority.  You can be sure, however, that Fox, CBS, and NBC had such policies in place, and the alleged perpetrators likely attended multiple harassment training sessions over their long careers.  In the end, policies and training alone cannot set the tone in the workplace.  Rather, it is the employer’s reaction to allegations of sexual harassment that sets the tone and determines the workplace’s culture.  Will your company be permissive of sexual transgressions, particularly where the accused is a valued employee?  Or will your company take every complaint seriously, investigate it thoroughly, take appropriate actions in response, and protect the alleged victim from retaliation?

What follows is a brief primer on the steps employers should take when they receive a complaint of sexual harassment, or otherwise learn of such conduct in the workplace:

Set the Tone Early by Acting Quickly.  No one wants a rush to judgment, however, immediate initiation of an investigation demonstrates the seriousness of the issue and also allows for a thorough investigation and timely resolution.  A slow response defeats each of these goals.

Select the Right People for the Investigation.  The investigation should be led by someone who will be unbiased and thorough.  You should eliminate from consideration friends of either the accuser or the accused, as well as individuals with direct authority over either.  Often, your HR professionals or outside legal counsel are the most appropriate individuals for conducting such an investigation.  To ensure that complaints of harassment actually get reported, provide multiple points of contact in your company for employees to report such complaints in the event that, for example, an employee’s supervisor is the harasser.

Conduct a Fact Specific Investigation.  Every sexual harassment investigation is different.  The particular allegations help to determine the precise scope of the investigation.  At a minimum, a harassment investigation involves interviewing the accuser and the accused.  Potentially other witnesses and people believed to have relevant knowledge may also need to be interviewed, and documents, such as emails or text messages that corroborate or contradict the allegations, should be collected and reviewed as well.  

Respect Confidentiality without Making Assurances.  Investigations into allegations of sexual harassment often involve intensely personal, sometimes demeaning scenarios.  To avoid humiliation of the victim or the alleged harasser, keep the investigation and the facts learned in the investigation as confidential as possible.  Inform interviewees not to discuss the investigation with co-workers.  Communicate information about the investigation only to those that need to know about it, but do not promise absolute witness confidentiality to the complainant, the accused, or witnesses, as such a promise could obstruct the investigation and is difficult to enforce.

Communicate the Expectation of No Retaliation. A person who complains about sexual harassment (and those who cooperate with the investigation) cannot face adverse employment action.  If they do, it could result in a separate legal claim for retaliation, which often succeeds in court even if the initial, underlying sexual harassment claim does not.  To avoid this, inform interviewees that you will not tolerate retaliation against a complainant or others who cooperate in the investigation.  Make sure that all managers understand that they cannot make any change to the terms and conditions of employment or do anything that could be perceived as punishing the accuser or any witnesses because of their involvement in the sexual harassment investigation.
   
Consider Interim Measures.  While the investigation is happening, evaluate whether it is appropriate to take some preliminary action to avoid ongoing contact between the alleged victim and harasser.  Consider separating the complainant and alleged harasser to minimize the chance of continued harassment or retaliation during the investigation, but always ensure that the measures themselves do not constitute retaliation against the accuser.  Typically this means that the accused, and not the victim, should be the party to face the adverse interim consequence.  Unless the victim asked for time off (which should be considered), the party accused of harassment, and not the accuser, should be the one who is transferred to a different department, assigned to a different shift, or suspended to avoid contact with the alleged victim.  Be sure to monitor the efficacy of interim measures taken throughout the investigation to make sure that the accuser feels safe in the workplace.

Memorialize the Conclusion.  It is good practice to prepare a written report documenting the findings of a sexual harassment investigation.  Detail the steps taken in examining the allegations, including interviews conducted and documents reviewed, and explain any conclusions.  Inform the complainant and alleged harasser of your findings and the corrective actions you will take.  If sexual harassment is found, take action to end it and prevent it in the future.  Regardless of the findings, make follow up inquiries to ensure conduct has not resumed and that retaliation against the complainant or witnesses has not occurred.

Corrective Action Should be Fair and Consistent.  Ultimately, you must make a business decision concerning corrective action based upon the outcome of your investigation.  That decision could have a major impact not only on the alleged victim and the accused, but also on your workplace morale and culture.  In  reaching this decision, you must weigh the credibility of the witnesses interviewed, the seriousness and frequency of the alleged conduct, the alleged victim and harasser’s employment record, and the company’s history of disciplining similar prior cases.  

In short, enforce a culture of respect and responsibility.  Develop anti-harassment policies and train on them.  When a complaint arises, take it seriously, be thorough in response to it, and be fair in your resolution.  Do not assume any person “could never do something like that.”  No one should be considered “untouchable” and everyone needs to know they must be accountable.  That said, do not react in a panic and respond to a complaint without an investigation.  Firing someone without a fair and thorough investigative process could subject you to claims from the accused that could involve discrimination or wrongful termination as well. Certainly, you should be sure to treat people the same based on facts and not react based on assumptions that could be founded on prejudgments rather than evidence.  So, if you take the complaint seriously, be thorough in response, be fair in your resolution based on facts, you will do the right thing.  In the end, you will have the culture that you enforce, not just the culture that you preach.  

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