October 1, 2008
On May 14, the Equal Employment Opportunity Commission announced a settlement with a company accused of sexual harassment. The result was typical: The company agreed to pay $375,000 to end the lawsuit.
In 2007, the Equal Employment Opportunity Commission, along with state and local agencies around the country that work with the commission, received 27,112 claims of harassment, 12,510 of which were sexual harassment charges. The EEOC resolved 22,572 claims in 2007, recovering more than $65 million for those who filed harassment charges. And companies in traditionally blue-collar industries, such as HVAC or sheet metal, where white male workers have historically made up almost the entire work force, are especially at risk.
That’s why employers must be prepared to act quickly whenever an employee complains of harassment, whether the alleged behavior is based on sexually inappropriate comments, racial abuse, bullying or other forms of harassment. Establishing and enforcing policies to handle harassment complaints and investigations can help employers avoid lawsuits, federal inquiries and nasty public relations battles. A clear, consistent and thorough policy can also create a more comfortable working environment for employees at every level of the company.
Defining the problemThe commission defines harassment as “unwelcome conduct that is based on race, color, sex, religion, national origin, disability and/or age.” Harassment creates liability when an employee must endure the offensive conduct in order to keep his or her job, or the conduct is so severe and pervasive that a reasonable person would consider the work environment intimidating, hostile or abusive.
When developing a harassment investigation policy, employers should first decide which person or people in the company should receive complaints. These people should have extensive training, and all employees should know exactly how to file a complaint and with whom. Choose investigators that employees will feel comfortable approaching, and who are viewed throughout the company as fair, reasonable and neutral.
In some cases, if the allegations are serious enough or pervasive throughout a department or work shift, an employer may want to bypass the in-house investigator and hire a third party to oversee a thorough investigation.
Employers must take a strong, consistent, public stand against harassment of all types. Employees at all levels of the company should receive regular training about appropriate conduct, so they understand what type of behavior is acceptable and what crosses the line into harassment. Supervisors should be trained in how to recognize and react to harassment.
The company policy should make clear that harassment of any type will not be tolerated, and harassers will be punished - punishment that could include termination.
Don't ignore problemsFor employees who allege harassment, feeling ignored by management will only make them more upset. The investigator should reach out as soon as the complaint is filed. A formal investigation should begin as quickly as possible, and it should be clear to both accuser and alleged harasser that they will have a chance to tell their sides of the story.
The investigator should make it clear to the complaining employee that while every effort will be made to maintain confidentiality, it cannot be guaranteed if that would interfere with the investigation. The alleged harasser will need to be told of the charges, and other employees who may have witnessed the questionable behavior could be interviewed as part of the investigation.
The investigator should ask detailed questions, including where, when and what exactly occurred. The investigator should also find out who else may have witnessed any of the alleged behavior and whether the employee had reported complaints before.
The investigator should next talk to the alleged harasser, to find out his or her version of events. The investigator should make clear that he or she absolutely cannot discuss the situation with the employee who filed the complaint, and the company will deal harshly with any type of retaliation against the accuser.
The investigator should also talk to any other employees who may have witnessed the alleged behavior. In cases that boil down to a “he said/she said” situation, these employees may offer the most impartial - and useful - version of events. They should also be assured that no employee will suffer retaliation for participating in the investigation.
Keep recordsEvery step of the investigation should be recorded in a confidential file, from the initial complaint through every interview to the final resolution. In case of a government investigation, or subsequent litigation, such documentation can be invaluable.
After a thorough investigation has been completed and the investigator has filed a report with the appropriate manager, the employer must decide what action to take. Not every investigation can be conclusively determined, and not every type of inappropriate behavior rises to the level of harassment. If the investigation does find that prohibited harassment occurred, the harasser can be disciplined in a variety of ways, from a verbal warning to placing a disciplinary letter in the harasser’s personnel file or firing.
Whichever course of action is determined, the company should notify both the complainant and the alleged harasser about the decision and how it was reached.
For the employer, the end result of any harassment investigation should be to send two clear messages: Allegations of harassment will be taken seriously; and harassment, if it has occurred, will not be tolerated.
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over 30 years, including stints with the U.S. Department of Labor and the National Labor Relations Board. A prolific writer on labor and employment law, he conducts frequent seminars to client companies and trade associations across the country. Questions can be addressed to Alaniz at (281) 833-2200 or firstname.lastname@example.org.