You grab your morning coffee and head to your office in a rush, ready to close the door and bury yourself in the paperwork you have been neglecting for weeks when one of your assistants asks to speak to you in private about the harassment she believes she has endured at the hands of a senior vice president of the company. Where do you go from here? What are your responsibilities to the employee and to the company? How do you handle this curve ball that has been fired at you?
Hopefully, risk management within your company began long before today. With any luck, your company has a comprehensive written sexual harassment policy, periodic sexual harassment training for all personnel, and clear direction from management showing a commitment to keeping the workplace free from harassing behavior. If the company has no such preventative measures in place, there is no time like the present to save the future.
Once an internal complaint has arisen, an employer must take “immediate and appropriate corrective action by doing whatever is necessary to end the harassment.” EEOC Policy Guidance: Sexual Harassment No. 137N4060 (1990). The precursor to a determination of whether corrective action is required is an adequate investigation. All complaints of harassment must be taken seriously and responded to as quickly as possible. Failing to do this may lead employees to lodge complaints directly with administrative agencies such as the New Hampshire Commission for Human Rights or the Equal Employment Opportunity Commission without giving the employer an opportunity to respond and take corrective action.
The duty to investigate arises whether the complaint is made formally or informally. All employees, especially supervisory employees, are required to bring concerns about possible sexual harassment to the attention of management or human resources. The duty remains even if the alleged victim does not want an investigation to occur. Once the issue has been raised, it must be addressed. Even if no actual complaint is made, an employer with knowledge of certain potentially offensive behavior may be deemed to have constructive knowledge of a hostile work environment. Looking the other way is not an option.
When an investigation is necessary, it is crucial to choose an appropriate investigator. This choice can influence how comfortable employees feel about lodging complaints. It can also lead to an inadequate response if the company relies on erroneous or incomplete information to make decisions which greatly affect the lives of all parties involved.
The investigator should be neutral and objective, be properly trained, fully understand the issues and the law, and be willing and able to conduct a thorough investigation. The investigator must have the respect of upper management, be comfortable interviewing witnesses, and be a credible and effective witness if that becomes necessary. There should also be an alternative to a designated investigator if the complaining employee is not comfortable with that person or if the designated investigator is actually the subject of the complaint. In certain circumstances it may be advisable to hire an outside investigator or even an independent attorney (other than the company’s counsel) to conduct the investigation. This type of action is warranted, for example, when there are concerns about the honesty and integrity of the process or when personnel in high level management are being implicated.
The adequacy of the investigation will affect the result of any administrative or court review, because the investigation is the employer’s proof that it acted promptly and reasonably to ending any harassment. At a minimum, an adequate investigation should consist of the following:
- A standard operating procedure for responding to complaints
- A determination of the basic facts
- An interview with the complainant who is:
- Assured that he/she will be protected from retaliation
- Advised that the matter will be kept as confidential as possible with disclosure to only those who have a legitimate need to know
- Informed that it may be necessary to discuss the claims with others including the alleged harasser
- An interview with the alleged harasser
- Interviews with additional witnesses
- A complete record of the investigation
- A conclusion, and then appropriate action of which the relevant parties and those with a need to know are informed.
Once the investigation is complete, the employer must take appropriate and timely action. Responding quickly, in an organized manner, is the best way to effectively manage complaint situations and avoid costly litigation. Employers of all sizes should 1) periodically review their sexual harassment policies with counsel; 2) conduct regular training sessions for employees and supervisors; 3) have trained individuals responsible for investigating and reporting complaints; and 4) act quickly and efficiently to respond to the concerns of employees who might be victims of harassment.
Charla Bizios Stevens is a member of the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at 603-628-1363 or [email protected]. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.