Investigating a Sexual Harassment Complaint
Sexual harassment in the workplace is something no employer wants or foresees when hiring personnel. All parties involved are likely to be uncomfortable, but a business’ success, from both a legal and cultural standpoint, is premised on an environment that feels safe and has proper procedures in place to take complaints seriously and provide recourse.
What is sexual harassment?
Sexual harassment can take many forms, but is generally any nonconsensual sexual act or
verbiage that contributes to a negative work environment. Examples include, but are not limited
to*:
– Visual conduct, like leering, making sexual gestures, displaying suggestive pictures, etc
– Verbal conduct, like making or using derogatory comments, epithets, slurs and jokes
– Verbal abuse of a sexual nature, like verbal commentaries about an individual’s body
– Physical conduct, like touching, assault, impeding or blocking movements.
– Offering employment benefits in exchange for sexual favors.
– Threatening retaliatory action after receiving a negative response to sexual advances
What does an employer legally owe their employees?
It is an employer’s obligation to make reasonable efforts to “prevent and address” unlawful behavior. Both state and federal law outline the responsibilities that employers have to their employees, which generally includes:
– Taking a sexual harassment complaint seriously
– Addressing a complaint in a timely manner, while also preserving evidence gathered and
minimizing workplace disruptions
– Take action that helps prohibit the offensive conduct
Steps to a Proper Sexual Harassment Investigation
Any investigator will be juggling a wide variety of interests and emotions. They also must conduct their investigation promptly and efficiently, without rushing. Being timely, fair, and thorough are integral to a proper investigation and conclusion.This includes being sure to document as much as possible, in a way that can not be edited. Clear documentation will demonstrate that a complaint has been taken seriously. It also makes it easier to transfer a complaint over to someone else, if a conflict of interest or other issue arises.
1. To start: Make sure that you have someone responsible for handling and investigating
complaints, whether that’s an internal employee or an external hired party. Also ensure
that there is a way for employees to file complaints with that person, and that employees
are aware of this system.
2. Investigating & Interviews: If a complaint is isolated or ambiguous, an investigator may
feel it’s best to counsel the individuals directly. However, if there is any question as to
severity or if the conduct is ongoing, it is likely best to initiate an investigation.
○ Step 1: Conduct preliminary interviews → Interview both parties, with the goal of
getting more clarity on what has happened. The accused party has a right to know
that an allegation has been filed and an investigation is being conducted. (The
investigator should not feel as though, however, that they need to disclose all
information, including the identity of the alleger.)
■ The investigator should remain mindful that no conclusion has been
reached. Being aggressive or hostile in an interview will not be helpful in
gathering information or honest responses. Staying calm, appearing
neutral, and asking open ended questions will lead to the most fruitful
results. Doing interviews in person is best.
○ Step 2: Gathering more information → The preliminary interviews will likely
allow the investigator to identify additional witnesses to interview or other
evidence to gather (like documents and communications). When interviewing
other people, remember to carefully consider what information to disclose while
also verifying the facts that have been gathered. Assemble any possible evidence
that can fill in or support the full story of what has happened.
■ Helpful evidence can include, but is not limited to:
1. Written communications, like emails, texts, etc.
2. Written or verbal testimonies from other witnesses
3. Photos of videos of the incident(s)
4. Objects that can demonstrate harassment (think gifts, notes, etc.)
5. Performance reviews (if relevant)
■ In interviews, focus on the quality or content of information relayed, not
on how it’s delivered. What may seem guilty or dishonest to you may be
someone feeling nervous or scared.
○ Step 3: Consider the credibility of the parties → Consider, with the evidence, if
the following questions can help you come to a decision about what likely
happened:
■ Does the story seem plausible? Does either party have a motive to be
untruthful? Did a party in an interview provide inconsistent answers or
communicate in indirect/hesitant ways?
■ Is there any evidence or witnesses that corroborate one story over another?
How much was a victim or witness able to recollect or communicate about
the conduct?
■ Is there a history of honesty or dishonesty on behalf of anyone involved?
Is there any consistency to the behavior or is it a known habit of the
alleged harasser (ex: touching female employee’s on the back)?
Other questions and tips
Sexual Harassment & Managers
If a complaint is filed against a higher level associate or manager, an employer should escalate the investigation appropriately to an employee on a similar or higher level than the alleged harasser. Having a lower level employee attempt to conduct an investigation against a superior will likely be difficult. If there is no one inside your organization, research external parties that can investigate. To learn more about complaints when being sexually harassed by a supervisor.
What about confidentiality?
A common concern in addressing a sexual harassment complaint, for both employees and employers, is affecting reputations. An investigator should strongly consider the pros and cons of disclosure throughout the process. On one hand, disclosure will likely be necessary at different stages of the investigation, in order to find out more and take appropriate action. On the other hand, information should only be shared with employees on a need to know basis.
Can employers require confidentiality from their employees?
The best course of action when considering this is to ask an attorney. Employees generally have the right to talk about their workplace, and legal history suggests that, should there be a lawsuit, mandating confidentiality could be considered unethical if not illegal.
Investigating sexual harassment is a comprehensive process, one that includes being flexible, sensitive, and principled. Over time, an employer or an investigator will likely establish different methods and timelines to address different types of alleged harassment. Remaining current on the law and current best practices in handling sexual harassment in the workplace will go a long way in protecting your company legally, and maintaining a safe and productive workplace for your employees.
Note that this article does not constitute legal advice, and you are encouraged to do further research or consult an attorney for your business’ specific needs and legal responsibilities.
Sources
● *CA Civil Rights, Employment Discrimination
● CA Civil Rights, Workplace Harassment
● State of California Department of Justice
