In a recent post, we discussed strategies for preventing harassment claims in the workplace (if you missed it, read it here). While that information covered a variety of situations, sexual harassment has been a primary focus for businesses in this current climate. What should you do if it’s too late to prevent a claim and an accusation has already been leveled?
First, even if no incidents have yet occurred in your company, you should have a system in place and be ready to execute the following steps, because the first and best piece of advice is to act promptly. A designated employee or employees should be trained in the procedures below, should understand the importance of protecting private information and should know when legal guidance is required.
In separately interviewing the parties to the complaint, the investigator should first determine whether the conduct was actually sexual harassment, defined as being sexual in nature and unwelcome by the accuser. According to the EEOC, conduct is unwelcome when the victim does not solicit or incite the conduct in question, and/or the conduct is considered offensive or undesirable by the victim.
The investigator must consider not only what was said, but every aspect of the circumstance, including the victim’s speech, clothing and whether he or she participated in the conduct voluntarily. Each of these factors alone do not necessarily dispute or constitute a sexual harassment claim, but together may invalidate or validate a claim.
Next, the investigator must determine whether the harassment falls into the category of quid pro quo or hostile working environment. In a quid pro quo situation, the victim is promised a raise, promotion or other benefit in exchange for unwelcome sexual favors (or conversely, threatened with the denial the same). A hostile working environment is harder to define, but the EEOC’s definition encompasses behavior that a “reasonable person” would find hostile or offensive.
Finally, the claim and each step of the investigation must be documented in writing, to include the following at a minimum:
- Details of the complaint
- Preliminary investigation plan
- Responses to the complaint
- Witness statements
- Adjustments or amendments made
- Investigator’s findings
- Conclusions as a result of investigations
- Discipline administered
- Harasser monitoring efforts
Again, a prompt investigation is essential and should be followed by appropriate disciplinary action as quickly as possible. This demonstrates to all employees that the company treats such matters very seriously. And should the case proceed to litigation, a jury is less likely to punish a company that can demonstrate a swiftly-handled and well-documented case.
Questions about protecting your firm against claims regarding sexual harassment and other inappropriate workplace behavior? Contact Consolidated Insurance.