Your First Sexual Harassment Complaint
Ten Keys to Success
By Linda Siniard, SHRM-SCP
You are an experienced human resources professional. You’ve attended numerous trainings, conferences, seminars, workshops, and HR association meetings. Maybe you have a national HR certification, or several. But you’ve never received a sexual harassment complaint before. Before today, that is.
On receiving a sexual harassment complaint, you’re likely to feel bombarded. No wonder. A complaint has legal implications. It can damage careers and personal lives, seriously disrupt the work environment, harm the organization’s reputation, lead to spiraling legal costs, and put a serious crimp on the workplace improvement projects you were working on… Breathe.
And then take it one step at a time.
Following are the top 10 things to do after receiving a sexual harassment complaint:
- Get the diagnosis right. Your main goal is to determine: Is it really sexual harassment? A generally accepted definition of sexual harassment is “unwelcome verbal, visual or physical conduct of a sexual nature.” This can include offensive remarks, gestures, objects, jokes, or behaviors. The harassment can fall into two distinct categories, hostile environment and quid pro quo.
Both categories of sexual harassment are considered illegal forms of discrimination because they discourage individuals from applying for certain jobs or make their jobs harder. The Equal Employment Opportunity Commission (EEOC) is the administrative agency that defines sexual harassment and administers claims at the federal level. Some states have even more stringent laws, including requirements for training and complaint procedures. So it’s important to refer to the appropriate agency that enforces your state’s Fair Employment Practices for the most definitive state and local laws that pertain to your organization.
- Hostile environment harassment occurs when verbal, visual or physical conduct of a sexual nature is sufficiently severe, pervasive, or ongoing to alter the conditions of employment or create an abusive working environment for the harassed employee(s).
- Quid pro quo harassment occurs when a supervisor or someone in a position of power in the workplace abuses his or her authority by making sexual demands. These demands may offer job benefits or job security if the demands are met, or threaten the loss of benefits or security if the demands are refused. (The name quid pro quo in Latin means “this for that,” or “this in exchange for that.”)
- Act quickly. It’s imperative that you do all you can to stop the harassment and address the needs of the affected parties. Be prepared to clear your schedule for the next few days. Handling an investigation in an expedient manner is a critical component of your response and will be looked at very closely should the issue come before a jurisdictional court or administrative agency.
- Review. Review your company’s harassment policy, which should be included in your employee handbook. Ensure that all current employees have acknowledged receipt of your policy, plus what to do and whom to contact if they have a complaint. Make sure you include all who may have been affected. The harassment may have harmed a number of employees, and now’s the time to bring all issues to light.
- Get help. If you have not been trained in workplace investigations, particularly sexual harassment investigations, consider hiring an attorney or a licensed private investigator (PI) to conduct the process from beginning to end. Using the services of an external investigator can enhance neutrality and lessen the chances of your company’s HR department becoming involved in claims of inaction, defamation, and/or retaliation. Finding an attorney to conduct your investigation can be as simple as contacting your company’s law firm for their assistance or to obtain referrals to other firms that specialize in this service. Not all PI firms offer workplace investigation services, so check to make sure they have extensive experience and a reputable client list.
- Interview: If you have been trained, review your training materials before beginning your interviews. Make sure you have interview templates readily available. Your interviews are for the purpose of fact-finding, not an opportunity to make judgments nor to ask leading questions or make narrative comments. While you will want to tailor your questions to the particular circumstances, sample questions are included in this comprehensive document at the EEOC website and apply to all states. The page is very long, and the questions can be difficult to find, so we’ve provided this convenient version.
- Notifications: Notify the manager of the complainant and the manager of the alleged harasser. If the complainant’s manager is the alleged harasser, notify that manager’s boss. Other company leaders should be notified only on a “need to know” basis. Your notifications should include limited information, as follows:
- A potential issue of sexual harassment has been reported by either a direct complaint or through third party observations
- The investigation will include interviews of the involved parties and a review of any prior employment actions that may be relevant to the complaint
- Confidentiality is critical at this stage. However, the company may not be allowed to maintain complete confidentiality if any of the parties files a formal claim with federal or state agencies, or hires an attorney
- Any discussion of the complaint and/or speculation among staff and/or management should immediately be reported to HR, the investigating manager, or an external investigator to put processes in place to limit the impact of rumors and work disruption
- All parties and those managers with a need to know will be notified as to the outcome at the end of the investigation
- Documentation: As an internal investigator, your thorough documentation of the investigation process should include details of all interviews, any subsequent job status or benefits changes for affected employees (whether or not tied to the complaint or the investigation), performance evaluations, disciplinary actions, and your harassment policy. You may ask for any and all evidence, such as emails, voicemails, texts, notes, photos, and social media from the complainant, the alleged harasser, and third party witnesses related to the incident(s). Accurate documentation that provides a thorough review of the reported incident(s) is invaluable in simultaneously protecting the company and isolating the complainant’s, the alleged harasser’s, and third-party reports from innuendo and subjectivity. This is a time-consuming part of the investigation process, and one you can’t avoid.
- Separate: Depending on the circumstances and the severity of the complaint, you may choose to separate the complainant from the alleged harasser in the assignment of tasks and projects, and through a change in reporting structure. It’s best to ask the complainant if he or she would prefer to be separated and in what way. A paid administrative leave is a viable option until the completion of an investigation. Note: You need to be careful that you are not reassigning or transferring the complainant or the alleged harasser such that the change could appear retaliatory.
- Your conduct: Conduct your actions with the least disruption possible, and maintain a professional and objective demeanor throughout the investigation. No one outside the employee reporting the incident(s), the alleged harasser, third party witnesses, and managers or leadership with a need to know should be involved. Workplace confidentiality is key to a successful outcome. Above all, reserve judgment, remain discreet, and respond with genuine concern. Take all comments seriously but do not overreact to what you hear in interviews. Note: Absolute confidentially cannot be promised. The investigation by its nature will likely involve additional witnesses, and accused harassers must be allowed to provide their side of the story and suggest witnesses of their own.
- Last words of advice: The scary part is what you don't know you don’t know. You can do everything to the best of your abilities according to your training, federal and state laws, “best practices,” and still be confronted with the unknown. In the most basic terms, employees are human. All have different ethics, values, traditions, frailties, manipulations, motives and expectations. Maintaining job security, finances, relationships, and a need to “be heard” are all prime motivators that can support and alter human behavior. In our competitive workforce culture, employees can exhibit behaviors that both serve and detract from their jobs, coworkers, managers, and leadership. The company’s internal and external reputation can be positively or negatively affected, depending on how the investigation is managed and what steps are taken in resolving the matter. So do your best at all times and be as thorough as possible. Think about every action, interview and document, and keep in mind how it will appear if examined by outsiders—or a court of law.
The Good News
Not many sexual harassment complaints actually result in formal claims. In fact, about two-thirds of complaints do not rise to the level of harassment. In dealing with such complaints, your role might be to educate employees and managers alike about what truly constitutes harassment. When you are prepared, you can provide tremendous value when sitting across from a distraught complainant, an embarrassed alleged harasser, or a third-party witness who most likely wants to stay as far away from involvement as possible. And in cases where you determine sexual harassment actually has occurred, you can move quickly to remedy the situation and make sure that similar incidents will not occur again in your workplace.
ABOUT LINDA SINIARD, SHRM-SCP
Linda is a Senior Human Resources consultant at HR Options. She has over 20 years of experience in Human Resources in a wide variety of industries (publishing and media, technology, performing arts, hotels, oil and gas, manufacturing, wineries, financial services, and law firms) with private, public, union, non-union, multi-state, and multi-national organizations. She has a B.A. in Organizational Leadership, an M.A. in Transpersonal Psychology, a Senior Professional in Human Resources (SPHR) certification, and is currently balancing work with the pursuit of her Ph.D.
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