What Should Employers Do Once They Receive A Sexual Harassment Complaint?
If an employee complains of harassment, the employer should not ignore it or hope that it will go away.
Employers must investigate sexual harassment complaints, either themselves or by hiring an outside investigator.
Whether the investigator is internal or hired from the outside, the investigator should be experienced and impartial. He or she should keep records of the investigation sufficient to explain the steps taken and conclusions reached.
The investigation should be conducted promptly. Delay or “foot-dragging” by an employer could be seen as an indication that the employer did not take the complaint seriously.
An investigator should not promise that the investigation will be kept confidential, because (among other reasons) he or she may need to interview witnesses and the employer may impose discipline as a result of the investigation.
The employer can (and should) keep the investigation as confidential as possible, in other words, limit information about the investigation to those with a “need to know.”
Most investigations involve at least one interview each of the complaining party and the alleged harasser, and interviews of relevant witnesses.
At the end of the investigation, the investigator should come to a determination as to whether the alleged conduct occurred and whether the conduct violated employer policies. Investigations are context-dependent, and the process for conducting a thorough investigation varies based on the allegations and circumstances. If, for example, an employee complains that a coworker said something mildly offensive on a single occasion, the investigator may interview the coworker and the coworker may admit to making the statement.
Under those circumstances, no further investigation may be necessary, and the coworker may be counseled.
However, if the complaint involves significant alleged conduct, company executives, or multiple complainants or alleged harassers, a lengthy and involved investigation may be required, and the employer may want to consult legal counsel.
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Emma Luevano is a partner and Sarah T. Wirtz is Of Counsel at Mitchell Silberberg & Knupp LLP (www.msk.com). Both represent management in a variety of labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, wage and hour issues, and retaliation.
About the author
Emma Luevano is a regular contributor to LatinBusinessToday.com on legal issues relevant to small and medium business. She is a partner at the law firm Mitchell Silberberg & Knupp LLP (www.msk.com) who advises and represents management on labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, class action wage and hour issues,and retaliation.