Blog Post by Anna M. Pepelnjak.
In addition to sexual harassment, workplace harassment can take many forms, including harassment based on disability, age, religion, race, gender or national origin. If the alleged harasser is the “alter ego” of the company, liability will almost automatically follow. For all other situations, however, it is not the harassment itself, but the company’s failure to react properly that triggers liability.
Upon receipt of a complaint of harassment or when an employer has reason to believe that a potentially harassing situation has occurred or is occurring, the employer must act promptly. It is imperative that an employer investigateall complaints completely and objectively. Accordingly, it is critical for employers to understand how to conduct a workplace harassment investigation.
Here are some guidelines that you may wish to consider:
- Promptness: An investigation must be commenced within 24-48 hours (excluding non-business days), and if not done in this time frame, there should be documentation outlining an important reason as to why it did not.
- Thoroughness: Prepare in advance, carefully select the investigator and outline your investigation plan to keep focused.
- Neutrality: Identify and collect all potential evidentiary items (including personnel files, policies, supervisor notes and complaints) and interview witnesses.
- Accuracy: Keep accurate records and consider having interviewees sign off on notes taken.
- Focus: Commit to maintaining to the purpose of the investigation and not to straying beyond that required by business necessity.
- Confidentiality: To the extent possible, discuss the investigation only with those who need to know.
- Ethical Restraint: Keep the investigation within the parameters of relevance and the alleged misconduct.
- Documentation: Take good, detailed notes, avoid using a tape recorder because of the “chilling effect” it may have on the witness. Consider writing a follow-up report.
- Corrective Action: Corrective action taken should be to the maximum reasonable under the circumstances to show the resolve of the employer to having a healthy working environment.
- Procedure: Make sure the terms of all policies, manuals, handbooks, collective bargaining agreements or employment contracts are followed. In addition, an employee making a complaint should be notified as to the outcome of the investigation once a final decision has been made.
There are at least four choices as to whom should perform the investigation: the employer or his/her designated representative, in-house counsel (if available), an outside attorney or a specialist in the field. In general, the more severe the harassment, the more an employer would benefit from using professionals to conduct the investigation.
Taking the time and spending the money to conduct a prompt and thorough investigation of a workplace harassment complaint is always worthwhile because it insulates the employer from liability.