Everyone knows “sex sells.” Every news outlet in the country is currently covering the Herman Cain sexual harassment scandal. No company wants or needs this kind of press.
Here is a list of dos and don’ts that will minimize the risk of your company making front-page headlines:
1. Do have an anti-harassment policy. Every company, no matter what size, must have an anti-harassment policy. The policy should clearly identify to whom employees should report harassing conduct. It should also give employees have at least two reporting options, e.g., “Human Resources or a supervisor.” All members of management must be trained to identify harassing conduct and to understand the company’s reporting and investigation protocol.
2. Do distribute the policy. Frequently employees will claim they did not get a copy of the policy and therefore they did not know how to report harassing conduct. Employers must make sure that each employee receives a copy of the policy, and that there is proof of receipt. This is usually best obtained via a written acknowledgment that is signed and dated by the employee.
3. Don’t do a “sham” investigation. All complaints should be carefully investigated by experienced investigators. In the event litigation develops, the investigation conducted by the company will be carefully scrutinized. Usually, the company’s own human resources department can handle the investigation. However, when the allegations involve high-ranking company officials, an outside investigator should be engaged so that there is no question that the investigation was conducted without bias.
4. Do keep written records of the investigation. The “investigation file” should include notes, credibility assessments, lists of witnesses interviewed, lists of witnesses not interviewed (and the reason why), copies of emails, evidence, etc. If the integrity of the investigation is ever questioned, the company will need this file to establish that a thorough, unbiased investigation was conducted.
5. Don’t forget the findings, conclusions and follow-up action. These three pieces are critical. The investigator should render both the findings and the conclusion. “Findings” are the facts that were uncovered during the investigation. The “conclusion” is a determination of whether or not the evidence supports a reasonable probability that the allegations occurred. Avoid a conclusion that the investigation is “inconclusive.” Either there is evidence that supports the allegations, or there isn’t. The company, not the investigator, should decide what follow-up action will be taken based on the conclusions. Examples of follow-up action are discipline, termination and training.
6. Don’t use the word “harassment.” Only a judge or jury can decide whether something is “harassment.” An employer need not admit something occurred that is lawfully defined. It is more accurate to say that an individual engaged in “inappropriate” or “unprofessional” behavior. In a legal context, it is possible that inappropriate behavior, while a violation of company policy, does not rise to the level of illegal ‘harassment.”
7. Don’t forget to follow-up with the complainant. At the end of the investigation, the employer should meet with the complainant and let him/her know the conclusion and the follow-up action. It is not necessary to let the complainant see the investigation file, but the complainant should understand that the investigation is concluded and that action will or will not be taken. Employers often make a huge mistake in failing to properly follow up with the complainant. In these cases, complainants who are left in the dark and unsure of whether the complaint was taken seriously will frequently resort to litigation.
8. Don’t ignore a serious problem. If inappropriate conduct is occurring in the workplace, swift action should be taken to eradicate it. Juries often award large sums to victims of sexual harassment. If you are unsure as to the severity of the conduct uncovered in your workplace, contact your company attorney.