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Between 2018 and 2021 the Equal Employment Opportunity Commission (EEOC) recorded an alarming 27,291 sexual harassment charges, underscoring the persistent challenge of workplace sexual harassment. This statistic not only sheds light on the prevalence of such incidents but also emphasizes the critical need for organizations to conduct a thorough and effective sexual harassment investigation.
These 13 essential tips are designed to guide HR professionals, managers and all involved parties through the intricate process of a sexual harassment investigation. From the moment an allegation is made to the final resolution steps, these insights are crafted to ensure each case is approached with the necessary diligence, fairness and sensitivity.
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Despite its importance, you may feel blindsided and unsure about how to initiate and carry out a workplace sexual harassment investigation. These 13 tips will help you navigate the sensitive and thorny path ahead:
When a complaint of sexual harassment is lodged, it is crucial for HR professionals or the designated authority within an organization to immediately acknowledge receipt of the complaint. This initial response is not merely a procedural step; it serves several important functions:
By acknowledging the complaint promptly, the organization demonstrates to the complainant that their concerns are being taken seriously. This can help build trust in the process and the organization's commitment to maintaining a safe workplace.
For many individuals, making a complaint of sexual harassment requires courage and can be emotionally taxing. A timely acknowledgment provides reassurance that they are heard and their concerns will be addressed.
Informing the complainant that their complaint has been received allows the organization to set clear expectations about the investigation process, including potential timelines, steps to be taken and how the complainant will be kept informed.
Acknowledging receipt of the complaint is also a compliance requirement within many organizations' policies and procedures, and it may be required by law in certain jurisdictions. It ensures that the organization follows its protocols and any legal obligations related to workplace harassment.
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Moving quickly to initiate the sexual harassment investigation is another critical step after receiving a complaint of sexual harassment. Prompt action is important for several reasons:
The sooner an investigation begins, the sooner any ongoing harassment can be stopped, thereby minimizing harm to the complainant and any other affected parties.
Taking immediate action helps in the preservation of evidence. Over time, memories fade, and physical evidence can be lost or destroyed. Quick action ensures that evidence is as fresh and accurate as possible.
Swift action further reinforces the organization's commitment to addressing sexual harassment seriously and maintaining a respectful and safe work environment.
By moving quickly, the organization can also implement interim measures to protect the complainant and witnesses from retaliation or further harassment while the investigation is underway.
Prompt sexual harassment investigation and response can have legal implications for the organization. Failure to act quickly may lead to increased liability in some cases.
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A crucial element of a thorough sexual harassment investigation is the careful selection of investigators. It's recommended to deploy two investigators to capture diverse perspectives, enhancing the fairness and depth of the inquiry. At least one should ideally share the complainant's gender to ensure a sensitive and comfortable dialogue.
Select investigators who are not only impartial but also bring a wealth of experience in dealing with similar cases. If your organization lacks internal resources with the requisite experience and impartiality, partnering with a professional employer organization (PEO), like Axcet HR Solutions, can be invaluable. A PEO can provide seasoned professionals skilled in navigating the intricacies of sexual harassment investigations, ensuring legal compliance and thoroughness.
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.
Additionally, be aware that if any individual involved in the complaint is a union member, a contractor or an employee working under other special circumstances, there may be additional procedures you need to follow. This can include adhering to specific contractual obligations, union agreements or legal requirements that apply to these workers.
Aligning with these guidelines and considerations demonstrates your organization's commitment to a respectful and safe working environment, accommodating the diverse employment arrangements present in today’s workforce.
Creating a structured plan before diving into the details of a sexual harassment investigation is crucial for ensuring a clear, efficient, and effective process. This plan should outline the purpose, timeline and scope of the investigation, providing a roadmap that guides all subsequent actions.
Let’s break down these components:
Time is of the essence in sexual harassment investigations. A specific timeline should be established, detailing when the investigation will start, key milestones (such as interviews, evidence review, and decision points), and a target completion date. This timeline ensures the process moves forward promptly, reducing the period of uncertainty for all involved parties and helping to preserve evidence integrity.
Planning Considerations:
Ensure that the plan respects the confidentiality of the complainant, the accused and any witnesses. This is critical for protecting the individuals’ privacy and maintaining the integrity of the sexual harassment investigation.
Identify the resources and support the investigation will require, such as access to documents, electronic records, and any potential need for external legal or investigative expertise.
By meticulously planning the investigation, organizations can navigate the complexities of sexual harassment allegations with a methodical approach. This not only aids in achieving a thorough and fair outcome but also reinforces the organization's commitment to addressing such serious matters with the seriousness and sensitivity they warrant.
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In the critical process of a sexual harassment investigation, the meticulous handling of evidence and documents plays a pivotal role. This step ensures that all pertinent information is accurately identified, securely preserved and thoroughly analyzed.
Below is a detailed exploration of how to effectively manage this aspect of the investigation:
The first task is to identify all potential forms of evidence that could shed light on the allegations. This includes, but is not limited to:
Once identified, it's essential to promptly secure and preserve the evidence. Digital evidence should be backed up, and access to the originals should be restricted to prevent tampering or accidental loss. Physical evidence should be kept in a secure location. This step is crucial for maintaining the integrity of the investigation and ensuring that all information is available for review and analysis.
As the workplace sexual harassment investigation progresses, new avenues of evidence may emerge:
Choosing the right location for interviews during a sexual harassment investigation is more than a logistical decision—it's a strategic one that can significantly impact the comfort level of the interviewees and the overall effectiveness of the investigation.
The goal is to select a setting that ensures privacy, fosters openness and maintains confidentiality.
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Maintaining confidentiality is crucial in a sexual harassment investigation to protect privacy, uphold the integrity of the process, and prevent retaliation.
Here’s how to effectively preserve confidentiality:
Only share investigation details with those directly involved or who need to know, emphasizing the need for discretion.
Clearly explain the importance of confidentiality to all participants at the outset, highlighting its role in protecting everyone involved.
Consider NDAs to legally enforce confidentiality while being mindful of legal restrictions related to their use in sexual harassment cases.
Keep all investigation-related documents in a secure location, accessible only to authorized personnel. Use encryption for electronic files and secure storage for physical ones.
Respond quickly to any breaches of confidentiality, assessing the impact and taking steps to reinforce privacy and address the issue.
Effectively setting up and conducting interviews is a critical phase of the sexual harassment investigation. Interviews should be meticulously planned to ensure that all relevant parties are heard, including the complainant, the accused, potential witnesses, and anyone else who might have relevant information.
Each interview should start and end by documenting the date, time, attendees, and the issue at hand, along with confirmation of the interviewee's consent to participate. This practice ensures clarity and accountability and should be reflected in interview notes or recordings.
Acknowledge potential discomfort but keep the conversation professional and focused on the facts.
Treat every complaint with seriousness, regardless of the complainant's history or initial impressions of the allegations.
Approach each interview without bias, giving equal weight to all perspectives in the investigation.
Clarify what the complainant hopes to achieve with the investigation, without making promises.
Prioritize active listening, avoiding personal judgments or comments that could influence the investigation's outcomes.
Concentrate on collecting detailed information about the alleged misconduct, including timelines, frequency, locations, witnesses, and impacts on the complainant.
Determine any immediate support the complainant may need, such as counseling or workplace adjustments, while ensuring these are not perceived as punitive.
Reinforce the organization’s commitment to protecting the complainant from retaliation.
By adhering to these guidelines, investigators can conduct thorough and respectful interviews, gather the essential information needed to assess the situation and move toward a resolution.
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 sexual harassment 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 workplace sexual harassment investigation is complete, 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 made, any issues that couldn’t be resolved and the actions you took to address the complaint.
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Review the sexual harassment 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 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 a thorough sexual harassment investigation is essential for creating a safe and inclusive work environment. Axcet HR Solutions, a trusted Kansas PEO and HR company, is here to support you in this critical process.
Contact us today to leverage our expertise in conducting workplace sexual harassment investigations, ensuring fairness and maintaining legal compliance. Our experienced team will guide you through every step, from gathering evidence to providing resolution strategies. Schedule a consultation today.
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