Sexual harassment complaints continue to dominate news headlines and significantly impact employers across the country. According to the Fisher Phillips law firm, 2019 was a record-shattering year for the #MeToo movement with employers paying out an all-time high of $68.2 million to those alleging sexual harassment through the EEOC. If an employee lodges a harassment or discrimination complaint at your company, how you respond will make all the difference in your organization’s ability to avoid legal liability, maintain your business reputation and engender continued loyalty from your employees.
Fast and effective action in the form of a thorough investigation can ensure all parties in the complaint are treated fairly while also providing your company a legal safe harbor. Under many laws (e.g., Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Occupational Safety and Health Act (OSHA), the Sarbanes-Oxley Act, state and local nondiscrimination laws), employers are legally obligated to investigate complaints (harassment, discrimination, retaliation, safety and ethical) in a timely manner. In addition, any appropriate corrective action is required to be taken by the employer to ensure illegal actions and behaviors cease immediately.
RELATED: No Room for Workplace Harassment or Bullying >>
Despite its importance, you may feel blindsided and unsure about how to initiate and carry out an investigation. These 13 tips will help you navigate the sensitive and thorny path ahead:
Let the complainant know the company takes the report seriously and will investigate.
The clock starts ticking as soon as a complaint is made. Yes, an investigation is distracting and disruptive for everyone involved. Still, you must make it a priority. Stretching an investigation out makes it harder for people to remember details, gives anyone trying to cover up bad behavior extra time to do so and communicates to employees that the company willingly tolerates misconduct.
RELATED: When Employees Harass Coworkers on Social Media, the Employer May Be Liable >>Choose an investigator who is trained and experienced in conducting investigations and who can ensure impartiality and professionalism throughout the investigation. Better yet, select two investigators – one who will conduct interviews and one who will take notes or record and transcribe interviews. (Note that people being interviewed may be more willing to share information if they are not being recorded.) If possible, one investigator should be the same gender as the person who made the complaint. You may have individuals on your team who can capably fill the investigator role. If not, your professional employer organization can provide a reliable investigator to handle the process for you.
Familiarize yourself with the EEOC’s harassment policy tips for small businesses for information about actions your company should take before, during and after the investigation. If an individual involved in the complaint is a member of a union, a contractor or an employee working under other special circumstances, there may be additional procedures you need to follow.
While you do need to act swiftly, you should do so only after you determine the investigation’s purpose, scope and timeline. Specifically, your plan should identify what the company will investigate, who will be interviewed and what questions will be asked.
Identify, secure and preserve any evidence and documents you know may be important to the investigation, such as emails, text messages, personnel files and company policies. Be prepared to collect any other evidence – surveillance video, employee calendars or attendance records, for example – that may become relevant as the investigation unfolds.
Determine where interviews will be held. This location should be private and, as much as possible, out of sight of other company employees, including management.
RELATED: Intimidation at Work, How to Deal with Workplace Bullying >>While the workplace grapevine makes it virtually impossible to achieve complete confidentiality, do all you reasonably can to keep details of the allegations and the investigation on a need-to-know basis. Underscore to everyone who is aware of and/or involved in the investigation that leaks are forbidden.
At a minimum, investigators should talk to the complainant and the person or people accused of the misconduct. Anyone who might have witnessed the alleged harassment or discrimination or in whom the complainant might have confided also should be interviewed. Every interview should begin and end with a recitation of the time and date, the people present, the issue being discussed and a confirmation that the interviewee has agreed to participate. This information should be included in the interview notes or recording.
The interviewer must:
If the parties’ stories conflict, as is common, you may need to re-interview witnesses to ask for more information or check your understanding of what they’ve said. Ultimately, you’ll be forced to decide whom to believe. The EEOC suggests weighing these factors:
It’s possible, especially if no one has witnessed the alleged wrongdoing, that you will not be able to resolve whether the alleged harassment or discrimination occurred. In this case, you can still remind employees that your workplace policies prohibit any such behavior. You also should let the complaining employee know that you will not retaliate because of the complaint, that you are committed to a harassment- and discrimination-free workplace and that any future incidents should be reported immediately.
If, after reviewing the interview notes and other evidence, you conclude that misconduct has occurred, decide quickly what steps you will take. Depending on the seriousness of the behavior, this may include training or other corrective action, or it may involve disciplining or terminating the accused employee. You do not have to take the action the complainant has recommended, but you should attempt to help him or her understand your decision.
After your investigation is done, write a thorough summary of the allegation that was investigated, all who were interviewed, what they said and when and where the interviews took place. Include a detailed chronology of the investigation beginning with the time the complaint was filed. The report also should explain the evidence you gathered and considered, the decisions you reached, any issues that couldn’t be resolved and the actions you took to address the complaint.
Review the investigation process and results to identify how your company could better respond to a similar situation in the future. Look for any systemic issues or patterns of complaints that may have come to light through the investigation. If any emerge, consider training or other actions your company might take to sidestep similar problems down the road. Establish and a clear procedure for reporting misconduct, and let your employees know how to use it.
The best investigation is the one you never have to conduct. To keep your workplace free of harassment and discrimination, maintain strict policies against such behaviors and make sure employees are aware of and trained on these policies.
Conducting thorough employee harassment investigations is essential for creating a safe and inclusive work environment. Axcet HR Solutions, the trusted PEO in Kansas and HR company, is here to support you in this critical process. Contact us today to leverage our expertise in conducting investigations, ensuring fairness, and maintaining legal compliance. Our experienced team will guide you through every step, from gathering evidence to providing resolution strategies. Choose Axcet HR Solutions as your partner in streamlining HR investigations, and let us handle the complexities while you focus on your core business. Reach out now to optimize your investigation process and foster a workplace free from harassment and discrimination.
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