Sexual Harassment Complaints require Prompt and Carefully Planned HR Actions

As noted by the hr capitalist, sexual harassment complaints can lead to adverse publicity, undermine management’s effectiveness, and cost companies big bucks. Although this situation cannot be entirely avoided, it can be managed with effective investigation of complaints.

Complaints directed at high level executives present particular problems for HR.  The executive absolutely cannot have any direct or indirect control over the investigation.  Claims involving the company’s CEO may require HR to go directly to the board of directors to protect the company.  Obviously, such action puts HR in an impossible position, so consider using outside counsel to manage the situation.

The EEOC’s Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors has the following summary about what an employer should do when it receives a harassment complaint:

How should an employer investigate a harassment complaint?

An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation.

The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information. The Guidance provides examples of specific questions that may be appropriate to ask.

Before completing the investigation, the employer should take steps to make sure that harassment does not continue. If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

The Link in EEOC’s Q&A takes you to the EEOC’s Enforcement Guidance which provides a rudimentary outline for an effective investigation, including Questions to Ask Parties and Witnesses, making Credibility Determinations, and Taking Corrective Action.  It is a good starting point for formulating your investigation strategy.

A recent appellate court decision in Dominic v. DeVilbiss Air Power Co., makes clear that an employer’s "good faith" efforts in investigating a complaint can limit its liability. The court enumerated good-faith efforts engaged in by the company:

• Adopted a formal zero tolerance anti-harassment policy.
• Launched a total of four separate investigations into the employee’s claims.
• Limited the direct communication between the employee and the offender.
• Encouraged the employee to report any incident of retaliation to management
• Requested a written statement from the employee and a witness list.
• Questioned all the employee’s witnesses.
• Consulted with outside counsel to ensure that it was adequately investigating the employee’s claims.
• Counseled the offender.
• Set up sexual harassment training requiring all salaried personnel to participate.