Harassment claims can lead to litigation and negative press, but more often than not, that path can be avoided by responding appropriately to the employee and resolving the source of his or her dissatisfaction. Often the conduct being complained of, while problematic from the employee’s perspective, does not constitute unlawful harassment, as defined by state and federal law. This does not mean that the issue may be ignored, but it may affect how formally the employer should respond.
With that in mind, here are some guidelines to consider when faced with a complaint:
1. Refer to your written harassment policy
An effective harassment policy should clearly outline the procedure for dealing with internal complaints of harassment. It should also include:
- A commitment to protect confidentiality to the extent possible under the circumstances, without promising absolute confidentiality.
- A commitment to take prompt and effective remedial action if the employer determines that harassment has, or may have, occurred.
- A commitment to protect employees who raise complaints in good faith from retaliation.
2. Provide a safe and receptive intake environment to the complaining employee
Employees are often reluctant to raise harassment concerns to their managers for a variety of reasons, including fear of being dismissed as a whiner. When complaints are raised, but are handled inappropriately, these fears are fueled. Employees begin to lose faith in the system and eventually stop notifying management of harassment issues. Managers can prevent this from happening by providing a safe, confidential and compassionate environment where employees can express their concerns to an appropriate employer representative such as an on-site human resources representative, an executive team member or an independent human resources consultant. The employer representative should not be the employee’s direct supervisor if there is any indication that the complaint involves favoritism or bias on the part of the supervisor.
In appropriate circumstances, a written statement may be requested from the employee, but generally should not be required. The law obligates the employer to act on all information available to prevent unlawful harassment, including complaints received through channels other than the process outlined in the harassment policy.
3. Conduct a proper investigation
There is no “one size fits all” approach to harassment investigations. Each investigation must be tailored to suit the particular allegations. The key is to make sure that the investigation is prompt and as thorough as warranted under the circumstances. Some investigations should be conducted by someone within the company, like a manager or human resource professional with investigations training or experience. Other times, depending on the circumstances and the particular allegations, it is best to engage a third-party consultant or qualified attorney to investigate the complaint.
In all cases, be sure to consider how best to protect the complaining employee from further harassing behavior or retaliation while the investigation is under way. This might mean separating the employee from the offending co-worker, or placing the alleged offender on leave pending the outcome of the investigation.
4. Take appropriate remedial action, and document, document, document!
If it is determined that the employee’s complaint has merit or that unlawful harassment has occurred, take prompt, appropriate disciplinary action. While discharging an offender is often the simplest way to prevent and deter future acts of harassment, a number of alternative measures may also be taken, depending on the severity of the conduct and the individual circumstances. Examples of consequences for the offender include: (a) transfer or demotion; (b) final warning or last chance agreement; (c) suspension without pay; and (d) voluntary resignation in lieu of termination. The disciplinary action taken should reasonably ensure that harassment does not continue or reoccur. All steps taken in the disciplinary action process must be well documented.
It is also important to follow up with the complaining party in the weeks and months following the complaint to confirm that no retaliation or further harassing conduct has occurred. These efforts should also be well documented.
One final note of caution: Be exceedingly cautious about disciplining or terminating a complaining employee, whether the complaint of harassment has been substantiated or not.
Even if a termination or other action is justified, when such acts occur close in time to a complaint, they can appear to be retaliatory and provide fodder for a formal dispute. When considering this option, consult with your employment law counsel before taking any disciplinary action against the complaining employee.
Amy Robinson is a shareholder practicing in Jordan Ramis PC’s employment and business practice groups. She can be reached at 360.567.3907 or by email at firstname.lastname@example.org.