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Best Practices: Defending Employee Harassment Complaints

First of all, it goes without saying that you should have in place a harassment policy (reviewed by counsel) which defines prohibited sexual, racial, and other harassment. 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. Few things fuel a harassment case quicker than a complaint that isn’t acted upon.

Conduct an immediate investigation in an impartial, fair, thorough, and respectful manner. Investigators should be trained in the investigation process. At times, it might be appropriate to consider an outside investigator.

Pro-tip: decide in advance whether to have your attorney conduct the investigation. If you do, you can maintain the attorney-client privilege. But keep in mind, you probably don’t want to maintain that privilege because 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. Ultimately, you’ll need to determine 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.

In cases where the 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.

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