Labor & Employment Law Articles

Investigating Sexual Harassment Complaints

You are congratulating yourself on having just completed an update of your employee handbook to include a new sexual harassment policy and have just concluded a training seminar for your supervisors on avoiding sexual harassment charges. You finally took those projects off the back burner and got them done. You feel that a great weight has been lifted off your shoulders when one of your employees comes in to complain about her supervisor making off-color remarks. What do you do now? How do you take that policy on paper and make it work in reality so that you will not face a lawsuit?

Unfortunately, the greatest policy on paper will not insulate you in real life unless it is properly implemented. This first means periodic dissemination of the policy so that everyone knows that there is a policy and procedure and what they are supposed to do if they have a complaint. This part is easy enough. The hard part comes when you actually have to investigate a sexual harassment complaint. There must be a thorough and documented investigation of each complaint. The complainant must be advised that there will be no retaliation for having made the complaint. The complainant should be informed of how the investigation will proceed. The complainant should be made aware that to the extent possible, the investigation will be conducted in a confidential manner. However, it is also necessary to inform the complainant that it will be necessary to confront the accused supervisor of the allegations so that he or she can respond. If the complainant is adamant about not informing the supervisor of the complaint, it is essential that the complainant acknowledge in writing that the employee has been informed that if that is the case, the company may not be able to take any remedial action. In some circumstances, where the complaint alleges outrageous behavior, it may be necessary to confront the supervisor and take remedial action despite the complainant's wishes for anonymity in order to protect the other employees exposed to this supervisor.

After confronting the supervisor and interviewing any witnesses, it is then necessary for the investigator to reach conclusions. The discipline, if any, of the supervisor depends on severity and pervasiveness of conduct found to have occurred. Appropriate discipline can range from verbal warning to termination. Disproportionate discipline can lead to possible lawsuits from the disciplined supervisor. (An example of disproportionate discipline occurred in the case of the supervisor who was fired for discussing an episode of Seinfeld at work.). Another way of remedying the complaint is by transferring the complainant or the supervisor so that they do not have to work with each other. However, a complainant should not be forced to accept a transfer against the employee's will. The complainant should be notified in writing of whatever action the company takes against the supervisor.