Responding to a Sexual Harassment Complaint
Responding to a Sexual Harassment ComplaintIf an employee makes a sexual harassment complaint, it is important that you know how to respond. Harassment and discrimination are prohibited by state and federal employment laws, and the employer's response is critical.
As a business owner or a manager, once you learn of a problem you have a duty to act. You could find out because an employee complains directly to you or human resources. You could also find out from your own observations, or from someone else bringing it to your attention. But once you know it, it becomes the company's responsibility to take action. |
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Sexual Harassment Policies
Massachusetts law requires all employers to have harassment policies in place. You are also required to have a system for reporting and investigating complaints.
Your policy should make it clear that both sexual harassment and retaliation for reporting harassment are unlawful. If should also provide a description and examples of actionable harassment. Finally, it should clearly explain the policy for reporting and investigating complaints.
There are two very powerful reasons for implementing a harassment policy. First and foremost, preventing harassment in the workplace is far better than trying to solve a problem once it occurs.
Second, if you do not have a policy in place, the employee may recover punitive damages from the court. If you have a policy but don't follow it, you could face the same result. These damages are on top of whatever they are awarded for actual damages and attorneys' fees.
Your policy should make it clear that both sexual harassment and retaliation for reporting harassment are unlawful. If should also provide a description and examples of actionable harassment. Finally, it should clearly explain the policy for reporting and investigating complaints.
There are two very powerful reasons for implementing a harassment policy. First and foremost, preventing harassment in the workplace is far better than trying to solve a problem once it occurs.
Second, if you do not have a policy in place, the employee may recover punitive damages from the court. If you have a policy but don't follow it, you could face the same result. These damages are on top of whatever they are awarded for actual damages and attorneys' fees.
Identifying Sexual Harassment
For a full explanation of the definition of sexual harassment, visit our sexual harassment page. You can also see the answers to some frequently asked questions about sexual harassment in the workplace. In short, it can involve unwelcome sexual advances or requests. It can also involve sexual comments or behavior that create a hostile work environment.
If a supervisor is pushing for a sexual relationship with an employee, you may have a classic case of "quid pro quo" sexual harassment. It is often more subtle than that, however. Repeated inappropriate comments by co-workers, undue attention to female employees' dress or appearance, off-color jokes, all can be part of a hostile work environment claim.
If a supervisor is pushing for a sexual relationship with an employee, you may have a classic case of "quid pro quo" sexual harassment. It is often more subtle than that, however. Repeated inappropriate comments by co-workers, undue attention to female employees' dress or appearance, off-color jokes, all can be part of a hostile work environment claim.
Investigating the Complaint
Once you are aware that an employee claims harassment occurred, there are certain steps you must take.
You must gather information from the individual in a safe and confidential manner.
You must also conduct an investigation into the allegations in a fair and prompt manner. You should also make sure that the complaining party and the accused are informed of the results of the investigation.
It is important that the employee has someone to report the complaint to who is not the person accused of harassment. In larger companies this is often the human resources staff. It could also be the CEO or other central management figure.
The investigation should be thorough and impartial. The goal of the investigation is to determine if the alleged conduct occurred. It is not to protect the company, or protect or demonize any particular employee. You should also be careful if the person accused is also in management, or your appointed harassment point person.
Under no circumstances should any employee be punished for reporting harassment. This includes the alleged victim as well as any other employee who steps forward in support. Even if the complaint turns out to be unfounded, you cannot retaliate against someone who brings the complaint in good faith.
This means you can face legal liability even if no harassment occurred. If an employee who was already facing potential disciplinary action alleges harassment, you should seek legal advice as soon as possible.
This process can be difficult to manage without creating risk. You are not required to have an attorney assist you, but it can be very helpful. An option is to retain outside counsel to manage the investigation. This of course has a cost, but can help give the process and the outcome credibility.
You must gather information from the individual in a safe and confidential manner.
You must also conduct an investigation into the allegations in a fair and prompt manner. You should also make sure that the complaining party and the accused are informed of the results of the investigation.
It is important that the employee has someone to report the complaint to who is not the person accused of harassment. In larger companies this is often the human resources staff. It could also be the CEO or other central management figure.
The investigation should be thorough and impartial. The goal of the investigation is to determine if the alleged conduct occurred. It is not to protect the company, or protect or demonize any particular employee. You should also be careful if the person accused is also in management, or your appointed harassment point person.
Under no circumstances should any employee be punished for reporting harassment. This includes the alleged victim as well as any other employee who steps forward in support. Even if the complaint turns out to be unfounded, you cannot retaliate against someone who brings the complaint in good faith.
This means you can face legal liability even if no harassment occurred. If an employee who was already facing potential disciplinary action alleges harassment, you should seek legal advice as soon as possible.
This process can be difficult to manage without creating risk. You are not required to have an attorney assist you, but it can be very helpful. An option is to retain outside counsel to manage the investigation. This of course has a cost, but can help give the process and the outcome credibility.
Remember the Human Factor
Every once in a while someone makes a harassment claim for strategic or other purposes. But you should understand that the vast majority of the time, the employee complaining is genuinely uncomfortable with the situation and is asking for help.
That does not mean you have to agree in the end that sexual harassment occurred. It does mean that this employee should be treated with sensitivity and respect.
The same is true of the person named in the complaint. They are entitled to your impartial ear, sensitivity, and respect, as well.
It can be hard to remember empathy when you are managing what feels like a crisis in your business. But it is important to your employees. It is also important to your business. Generally we have found that people who feel heard and respected are unlikely to bring legal action.
That does not mean you have to agree in the end that sexual harassment occurred. It does mean that this employee should be treated with sensitivity and respect.
The same is true of the person named in the complaint. They are entitled to your impartial ear, sensitivity, and respect, as well.
It can be hard to remember empathy when you are managing what feels like a crisis in your business. But it is important to your employees. It is also important to your business. Generally we have found that people who feel heard and respected are unlikely to bring legal action.
If You Are Served With a Harassment or Discrimination Lawsuit
You may find yourself facing a lawsuit if the situation does not resolve to everyone's satisfaction. How you handle this is critically important as well. If you have not already retained an attorney, now is definitely the time to do so.
An experienced employment lawyer can help you assess your risk early on, and advise you about the correct strategy to pursue. Your lawyer will also understand the procedural requirements and how to position you best for a favorable resolution.
Your lawyer's strategy will only be as good as the information you provide to him or her. You should preserve any documents relevant to the claims, and make sure your attorney sees them. It is your attorney's job to advocate for you, not to judge you or your business.
An experienced employment lawyer can help you assess your risk early on, and advise you about the correct strategy to pursue. Your lawyer will also understand the procedural requirements and how to position you best for a favorable resolution.
Your lawyer's strategy will only be as good as the information you provide to him or her. You should preserve any documents relevant to the claims, and make sure your attorney sees them. It is your attorney's job to advocate for you, not to judge you or your business.
Summary: Do's and Don'ts of Responding to a Harassment Complaint
Do:
Don't:
- Follow your sexual harassment policies.
- Document the steps you take to investigate and the outcome.
- Gather information from the complaining party in a safe and confidential environment.
- Conduct a thorough and impartial investigation.
- Make sure the person charged with investigating is not involved in the allegation or biased toward one party.
- Consult an attorney early in the process for advice and guidance.
- Take appropriate disciplinary action against the person doing the harassing, if the claims are supported.
- Take what you learn from the investigation and process to update your sexual harassment policies as appropriate.
Don't:
- Require the complaining employee to discuss directly with the accused.
- Take adverse employment action against the complaining employee without reasons unrelated to the complaint.
- Put negative comments in the complaining employee's personnel file in order to discredit him/her.
- Destroy any emails or other documents relevant to the complaint or investigation.
How Our Employment Lawyers Can Help
Every decision you make from the moment you learn of the claim can be critical. We have seen this situation before, and can help guide you through it. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
