When an employee complains that he or she is experiencing sexual harassment of any type, the employer has a legal, ethical, moral, and employee relations obligation to investigate the charges thoroughly—without delay. The employer can't take the time to decide whether they believe the employee or not, but must take him or her at their word.
What Additional Instances Must HR Investigate?
If an employer hears rumors that sexual harassment is occurring, the employer must investigate the potential harassment the same as if they had received a formal complaint.
- This can include hearing gossip from other employees.
- This can involve instances in which noninvolved employees or friends of the targeted employee bring up the subject with Human Resources to help their coworker or friend who is embarrassed to go to HR.
- This can also include any instance in which an employee tells HR about questionable behavior that they have witnessed.
These are examples of how seriously employers must take sexual and any other form of employee harassment that is or may be occurring in their workplace.
As an HR staff person, one of the most common requests that will occur when you are approached by an employee to talk is that they want to tell you something, but you must first promise to keep it confidential. Employees do not well understand confidentiality in HR.
You must be prepared to answer that request by responding that if you can, you will keep the matter confidential. Some issues you are required by law to pursue whether the employee wants you to pursue the allegations or not. Sexual harassment is one of them.
Discuss this thoroughly with the employee before he or she confides in you to avoid accusations of untrustworthiness. These will undermine the confidence of other employees who need to go to HR.
How to Handle Sexual Harassment in the Workplace
You will want to handle allegations of sexual harassment as you would handle any other formal complaint lodged by an employee. These are the actions you need to take to handle a sexual harassment complaint.
- Before a complaint is filed, make sure you have posted and informed all employees of your organization’s policy relative to sexual harassment. It won’t be tolerated; it will be investigated; it will be punished.
- Provide several different ways in which an employee can make a formal charge or complaint. You will not want to make complaints to the manager or supervisor the employee's only option as this may be the individual about whom the employee needs to complain. Human Resources offices are an excellent option. So is the CEO, president, or company owner unless they are the harasser. A manager is also a good option if he or she is not involved.
- Assign an HR staff member to own the complaint. This individual should be knowledgeable about the organization, the people in the organization, and the history of the organization.
- Map out a plan that covers the important people and situations to investigate from the initial complaint. Plan the investigation, based on current knowledge.
- Talk with the employee who is complaining. Guarantee that he or she is safe from retaliation and that they took appropriate action in reporting the incident or general situation no matter what the results of the investigation found.
- Inform the employee that you need to know immediately about any retaliation, purported retaliation, or ongoing harassment the employee experiences.
- Ask the employee to tell you the whole story in his or her own words. Listen with care; take notes to document the conversation thoroughly. Write down relevant facts such as dates, times, situations, witnesses, and anything else that seems relevant.
- Tell the person accused that a complaint has been filed and that no acts of retaliation or unethical actions will be tolerated. Ask the person to be patient while you conduct a thorough investigation.
- Assure the person accused that a fair and just investigation will be conducted on their behalf as well as that of the accuser.
- Interview any potential witnesses in the same manner. Ask open-ended questions and seek facts that support or disprove the employee’s allegations.
- Interview the person who is accused of sexual harassment. Apply the same listening and respectful approach you accorded the person who filed the complaint and the other witnesses.
- Take all the information you received and attempt to reach a decision. Make the best decision that you can with the information you have. Consult with other HR colleagues to do the right thing.
- Consult with an attorney to ensure that you are looking at the whole situation fairly based on the evidence you have. Make sure the attorney supports the direction you are taking.
- Based on all of the documentation and advice from colleagues and your attorney, make decisions about whether sexual harassment occurred. Provide the appropriate discipline to the appropriate people, based on your findings. Make work or assignment setting adjustments, or change a reporting assignment if necessary.
- Recognize that you are not perfect; no situation can be perfectly investigated. Even when harassment may have occurred, and you believe it may have occurred, you may have no facts or witnesses that corroborate a complainant’s statement.
- Assure that no further incidents occur by following up, and documenting your follow-up with the employee who made the original harassment claim. Keep documentation separate from the personnel file in an investigation folder.
- Afford the employee, who may have been wrongly accused, the same courtesy of follow-up and documentation. Adjust working situations fairly where necessary for the comfort and productivity of all.
Tips to Consider About a Sexual Harassment Investigation
As you approach a sexual harassment investigation, recognize that the field you are playing on extends far more widely than the employee who is accusing and the person who has been accused. Despite your efforts to keep an investigation confidential, and even if you have asked every employee involved in the investigation to keep the investigation confidential, employees talk. Other employees watch and listen.
- Legally, the employer will want to avoid any possibility or appearance that the employee’s complaint was disregarded. Respond immediately.
- Ethically, the employer will not want to allow such behavior to exist in their workplace.
- The trust, morale, and fair treatment of employees are at stake. An employer’s actions send powerful signals about what another employee can expect in similar circumstances.
- You may want to consider reposting and reiterating your sexual harassment policies across your whole workplace. Let the circumstances guide your judgment.
- In all cases, make sure that you write and keep complete and accurate documentation. Employees who are unhappy with the results of your investigation may take additional legal action.
Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. A worldwide audience reads the site, and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.