Harassment Investigation Policies Protect Employers, Workers

On August 11, 2008, the Equal Employment Opportunity Commission announced its settlement with a company accused of harassment and retaliation.

Home electronics retailer Video Only agreed to pay $630,000 and implement preventive measures to settle two lawsuits. According to the EEOC’s suit, two employees of Video Only’s Jantzen Beach store in Portland, OR, faced repeated slurs and jokes about their race, national origin and religion.The EEOC also accused the company of retaliating against the employees after they reported the incidents by, among other things, hiring a private investigator in an effort to discredit their harassment claims. Company managers also confronted supporters of the complainants and tried to get them to leave the company, the EEOC charged.

The result is typical. In 2007, the EEOC, along with state and local agencies around the country that work with the commission, received 27,112 claims of harassment, including 12,510 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 construction-where white male workers may have historically made up almost the entire workforce-are especially at risk.

In order to mitigate this risk, employers must be prepared to act quickly whenever an employee complains of harassment – and not with threats and intimidation – whether  the alleged behavior is based on sexually inappropriate behavior, 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.

The EEOC 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 when the conduct is so severe and pervasive that a reasonable person would consider the work environment intimidating, hostile or abusive.  

1. Establish “Point” People to Receive Complaints

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 and with whom to file a complaint and with whom. Choose investigators who 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.           

2. Establish a Code of Conduct

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 and 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 articulate that harassment of any type will not be tolerated, and harassers will be punished-punishment that could include termination.  

3. Respond Immediately to Every Complaint

For employees who allege harassment, feeling ignored by management will only make them more aggrieved. The investigator should respond to the complainant as soon as the complaint is filed. A formal investigation should begin as quickly as possible, and it should be clear to both the accuser and alleged harasser that they will have a chance to tell each side of the story.

Up front, the investigator should make it clear to the complaining employee that, while every effort will be made to maintain confidentiality, he or she cannot be guaranteed confidentiality, if that would interfere with the investigation. The alleged harasser will need to be informed 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. He/She should also find out who else may have witnessed any of the alleged behavior and whether the employee had previously reported complaints.

Next, the investigator should talk to the alleged harasser, to find out his or her version of events. The investigator should make clear to the alleged harasser 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 retaliation against the complainant.

The investigator should also talk to any other employees who may have witnessed the alleged behavior. In cases that can be boiled 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.

4. Create a Paper Trail

Every 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 government investigation or subsequent litigation, such documentation can be invaluable.

5. Make a Decision, and Follow Through

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 meets the criteria 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 to 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 the clear communication of two messages: Allegations of harassment will be taken seriously; and harassment, if it occurs, will not be tolerated.

Construction Business Owner, November 2008