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Handling Workplace Sexual Harassment Complaints - 5 Best Practices Every HR Professional Should Follow


    Avoid EEOC enforcement actions and legal penalties by ensuring that the HR department has a robust process to handle workplace sexual harassment complaints.

    Sexual Harassment - Regulatory Overview

    The laws against sexual harassment, a form of sex discrimination, are included in Title VII of the Civil Rights Act of 1964, which applies to:

    • Employers with 15 or more employees, including state and local governments
    • Employment agencies
    • Labor organizations
    • The federal government

    The following types of behavior/conduct would be classified as sexual harassment:

    • Unwelcome sexual advances,
    • Requests for sexual favors, and
    • Other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct:
      • Explicitly or implicitly affects an individual's employment,
      • Unreasonably interferes with an individual's work performance, or
      • Creates an intimidating, hostile, or offensive work environment

    The EEOC, in its description of when and how sexual harassment can occur, says that inappropriate conduct can take place in a variety of circumstances, including:

    • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
    • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a
    • non-employee.
    • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
    • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
    • The harasser's conduct must be unwelcome.

    Employer's Role in Handling Sexual Harassment Complaint

    The employer's role in handling sexual harassment complaints is critical - not just in addressing and handling any claims that are made but also in preventing such incidents from taking place.

    The most obvious and important tool to prevent sexual harassment from happening in an organization is to provide training to all employees. During the training, it must be made clear what sort of behavior is considered sexual harassment. HR trainers must also clearly communicate that such type of behavior will not be tolerated in the organization.

    An effective complaint or grievance process must be implemented by the HR department. The availability of this system and the company's policy on sexual harassment (it won't be tolerated and all complaints will be investigated) should be published in the employee handbook or posted on the company intranet/bulletin boards.

    Consequences of Improperly Handling Sexual Harassment Complaints

    The penalties for mismanagement of sexual harassment complaints can come at a high cost for the employer - not only in terms of penalties and settlements, but also reputation and stakeholder confidence. The EEOC has, through a series of lawsuits in the recent past and the multi-million dollar claims it has obtained, made clear that it has zero tolerance for employers subjecting workers to sexual harassment.

    Employers should also avoid retaliating against complainants - very often, penalties or settlements get incrementally larger if there's clear evidence of an employer trying to intimidate an employee into withdrawing his or her complaint.

    Handling Sexual Harassment Complaints - 5 Best Practices to Follow

    In order to implement a functioning complaint mechanism that helps resolve sensitive issues in a manner that is compliant, HR professionals should:

    1. Treat complainant with respect and keep information confidential
    2. The initial step in any functioning sexual harassment complaint mechanism, the actual receipt of the complaint, is a critical one. The conduct of the HR department in handling the initial complaint could come under scrutiny in case the EEOC or the courts get involved at a later stage and documentary evidence will be necessary to show that the company's behavior at this point was compliant with the law.

      The HR personnel in charge of receiving the complaint should ensure that the complainant is treated with respect. The HR should also reassure the complainant that:

      • Her/his complaint will be taken seriously and investigated by a neutral party
      • She/he will be protected from retaliation
      • The investigation and all information that is gleaned from it is kept confidential
      • She/he can provide evidentiary support from her/his side in the form of witnesses and documents and these will be taken into
      • serious consideration
      • The outcome of the investigation will be communicated in full to her or him.

      Documentation is vital - so HR should make sure that each complaint and case has its own file, with notes from interviews, the complaint in writing and documented actions included in it.

    3. Plan the investigation properly

      Once the HR has decided that the complaint has merit - there are witnesses, documents, the complaint is not trivial - the investigation has to be mapped out and planned.

      A good investigation is one that is prompt (starts within 24 to 48 hours of receiving the complaint), thorough and fair.

      One of the key decisions to be made at this stage is who will carry out the investigation. The investigator has to be neutral in order for the process to be effective. Some employees may prefer that a team of investigators carry out the investigation, particularly if they are composed of both genders. However, this may also create a sense in the employee that her/his complaint is not trusted. Using a team could also be an inefficient utilization of resources.

      In preparing the investigation, the HR personnel responsible should:

      Identify a list of witnesses Plan the order of interviews of the complainant, witnesses and accused Create a preliminary list of interview questions Use a specific place for interviews Establish a specific timeline for the interviews Make sure that the relationships between witnesses are taken into consideration when scheduling interviews

      HR managers should also keep in mind that it is not the speed of sexual harassment investigations that makes them effective, but their thoroughness. Ask the complainant to be patient while the investigation is being carried out. So no fixed deadline should be impulsively given. Successful investigations are those that sift through and weigh each piece of evidence.

    4. Make sure interviews are well executed and documented
    5. As explained in the previous section, it is necessary for interviews and their scheduling to be planned properly. During the actual interviews, the investigator(s) should:

      • Explain the purpose of the interview
      • Clarify his or her role in the investigation
      • Make sure that those being interviewed are aware that notes are being taken of their responses
      • Explain the employer's expectations
      • Ask about, and address, any concerns or questions that the witness may have about the process

      When asking questions, interviewers should:

      • Begin by asking general/background questions
      • Always stay on track and not go off on tangents
      • Keep an open mind and never voice an opinion about responses or the case itself
      • Ensure that the questions are open-ended. Asking leading questions are not a good investigational technique and could mar the
      • quality and outcome of the process
      • Keep questions to what the witness knows
      • Summarize the witnesses' responses periodically
      • Ask about other witnesses or evidence
      • Ask the witness to contact her/him in case any new information is known

      Documenting the interviews is very important - from a process and regulatory point of view. Investigators should ensure that:

      • Interviews are not recorded on tape
      • Their notes have a clear context, created before the interview begins
      • Quotations are used in the documentation
      • Facts are separated from opinion
      • Notes are rewritten immediately after each interview
      • Witnesses sign and date the notes of their interview after these are corrected

    6. Evaluate all evidence before reaching decision
    7. Before reaching a decision about the complaint, the investigator has to evaluate all the evidence gathered through the course of the investigation. During the evaluation process, the investigator must:

      • Ensure all contradictions have been addressed
      • Consider interviewing those involved again, if the information she/he has is not deemed sufficient to reach a decision
      • Examine the credibility of all those involved in the case
      • Assess the strength of the supporting documentation
      • Create two lists of evidentiary support - one that confirms the validity of the complaint and another that disproves each part of
      • the allegation
      • Obtain a second opinion from an experienced, neutral party, based on the collected evidence

      The most contentious point above is evaluating the credibility of the parties involved. This should be judged based on issues such as:

      • Assessing the complainant's reasoning and timing;
      • Whose narrative makes most sense;
      • Whether the person accused has a history of this kind of behavior;
      • Has the complainant made similar allegations before;
      • Whether witnesses' stories were consistent with timelines and so on.

    8. Communicate results appropriately
    9. Once a decision has been arrived at, the results have to be communicated appropriately to only those who need to know. Those in charge of investigating the complaint will have to ensure that they do not disclose witness names if they are asked and also needn't disclose specific disciplinary action.

      If there's a decision not to terminate any of the involved parties, then conflict resolution is the next obvious step. The decision should also be confirmed through a short memo to both the complainant and the accused party.

      Handle Sexual Harassment Complaints with Seriousness and Tact

      It is critical for HR departments in an organization to ensure they handle sexual harassment complaints seriously and provide a complaint resolution mechanism that is robust and confidential. Nothing poisons the atmosphere in a workplace more than leaked information about such complaints and situations can quickly deteriorate. The key to ensuring that compliance with the law is ensured is documentation - filing of investigations, resolutions, the investigative report - these are all necessary to avoid the possibility of regulatory enforcement or worse. The five best practices discussed in this article should help HR departments ensure that they handle sexual harassment complaints in a manner that is compliant with the law and fair to employees

      How can HR compliance training help?

      The areas highlighted above are just a small part of HR compliance. Subjects such as HR compliance are multi-faceted and complex and can be better understood after attending a training course such as the ones offered by ComplianceOnline. Our courses are available as live webinars, training recordings and seminars. We also offer customized training courses developed in conjunction with organizations that wish to train large groups of their employees.

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