HAHN AGENCY, INC.
Employment
Practices Loss Control:
Investigating reports of workplace harassment.
Sexual harassment claims have become an epidemic in American business,
extending even into the boardroom. Increased information on the subject has
caused claims to increase rather than decrease. Today, plaintiffs in sexual
harassment cases are more sophisticated, armed with psychological experts and
seeking broader remedies, including compensatory and punitive damages. Proper
investigative techniques for workplace harassment claims are of the utmost
importance and may foreclose liability altogether.
- Reports of sexual and other illegal workplace harassment should be taken
seriously and investigated as quickly as possible.
- All complaints of workplace harassment must be investigated, even if the
alleged victims request that they not be.
- Decide who should handle the investigation -- human resources
representatives, management, or in-house or outside counsel. Bear in mind
that the written record of the investigation will likely be evidence in any
administrative or judicial proceeding that results. Attempting to cloak
investigation materials in legal privileges so they need not be produced may
not be in the organization's best interests.
- Management cannot promise the accuser anonymity or confidentiality if the
complaint is to be properly investigated. Frequently, the specifics of the
complaint (time, place, statements made, etc.) must be revealed in order to
fully investigate it. However, information should be revealed only on a
"need-to-know" basis Advise all participants of the need to keep
the matter confidential.
- The organization should adopt policies requiring that all employees and
managers cooperate in the investigation. The complaining party must give
full details and not refuse to discuss the matter or require the
organization to deal only with his or her attorney. Managers or coworkers
who hinder; interfere, or refuse to cooperate with the investigation should
be subject to disciplinary action.
- Reports of alleged workplace harassment should be put in writing. The best
method of investigation is to have the claimed victim of harassment put the
complaint in writing and sign it. If this is not possible, a disinterested
investigator assigned by the organization should prepare a statement of the
complaint.
- The statement, whether prepared by the claimed victim or the investigator,
should contain dates, times, places, a detailed description of the harassing
conduct, and the names of possible witnesses. The alleged victim should also
be asked about the relief he or she seeks (such as having the misconduct
stopped or a transfer, etc.)
- Before any action is taken against an alleged harasser, the organization
should gather all facts, obtain signed witness statements, attempt to
determine the truthfulness of each witness, and give the accused employee an
opportunity to respond to the charges. The investigator must also determine
whether the accuser will stand behind his or her allegations, since a
written complaint may not be sufficient if the alleged harasser later
challenges the decision in court.
- Neither the alleged harasser nor claimed victim are entitled to have
attorneys present during the investigation or to review witness statements
taken as part of the investigation.
- The claimed victim and the alleged harasser should be informed of the
results of the investigation, no matter what the outcome. If harassment is
established, the harasser should be disciplined. Appropriate discipline can
range from a written warning to additional training, transfer, demotion or
discharge. More than one type of action may be necessary to halt ongoing
harassment, discipline the harasser and prevent a reoccurrence. Either the
claimed victim or the alleged harasser can bring legal action against the
organization if the investigation is not properly handled.
- If the results of the investigation are inconclusive, the alleged harasser
should be reminded of the workplace harassment policy and advised that, if
harassment had been found, discipline would have occurred. However, neither
the claim nor the investigation materials should be placed in either party's
personnel files.
- If the investigation reveals that no harassment has occurred, both parties
should be reminded of the workplace harassment policy and its purpose. No
notation of the claim or investigation should be made in either party's
personnel files.
- If the complaining employee is off work or on leave, he or she should be
encouraged to return as soon as possible. This will keep the employee
productive and reduce potential damages. However, returning the claimed
victim to work may require restrictions on the alleged harasser, especially
if the investigation has not been completed.
- If harassment is established, the victim should be advised in writing to
immediately report any renewed harassment or retaliation.
- Follow-up inquiries should be made by the organization to ensure that the
remedy was effective in stopping the harassment and that no retaliation has
taken place against the victim or witnesses.
- Regardless of the outcome, the records of the investigation should be
preserved in a separate file so that the investigation's propriety and
effectiveness can be established if either the claimed victim or alleged
harasser should subsequently challenge it in court or before a governmental
agency. Documents reflecting the discipline given can be placed in the
harasser's file if the claim is established.
It is extremely important not to dismiss any of
these accusations as frivolous. ALL claims should be investigated in a serious
manner.
Employment
Practices Loss Control
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