Best Employment Practices for Defending Employee Harassment Complaints
- Implement a harassment policy reviewed by counsel which defines prohibited sexual, racial, and other harassment. It should meet EEOC guidelines.
- Be sure your policy provides multiple persons to whom employees can report harassment, provides for prompt investigation and, where a violation exists, requires prompt and effective remedial action designed to stop the harassment.
- Train supervisors in their responsibilities to bring complaints of harassment or harassment they observe or which is reported to them immediately to either human resources or the manager responsible for addressing harassment.
- Train all employees (including supervisors) on the harassment policy and the procedures for raising a complaint and encourage them to promptly report harassment.
- Conduct an immediate investigation in an impartial, fair, thorough, and respectful manner.
- Select internal investigators who are trained in the investigation process or consider an outside investigator.
- Decide in advance whether to conduct the investigation through counsel so as to maintain attorney-client privilege. Normally the employer does not want to maintain a privilege since the investigation itself is part of the affirmative defense.
- Interview complainant, accused, and any identified witnesses. Document all witnesses’ statements. Consider asking witnesses to sign a statement.
- Arrive at decision on whether the policy was violated.
- If policy was violated, take prompt and effective remedial action designed to end the harassment and Confirm the action in writing to the harasser. Never rely on verbal warnings for this type of remedial action. Consider termination in serious cases and especially for a second-offender. Report back to the complainant, in writing, that the company found the policy was violated and that it has taken a remedial action designed to see that the harassment ceases.
- Where investigation is inconclusive, confirm in writing to the complainant and the accused that no conclusion could be reached, re-emphasizing the company’s commitment to a workplace free of harassment and warning that no future harassment or retaliation will be tolerated.
- Instruct the complainant to report immediately any further perceived harassment and any retaliation to the investigator or an identified HR representative.
- Consider refresher training in the harassment policy for the work group or the entire workforce.
- Do not fail to document the entire process and maintain the file separately from the employees’ personnel files.