Handling Sexual Harassment Allegations in the workplace, pt. 2
Investigating sexual harassment claims is one of the more challenging tasks a business owner or human resources professional can perform. Mishandling an investigation can further deteriorate your company’s culture if employees are hesitant to come forward with their own claims in the future, or if the victim files a legal claim against your business and you are not prepared as a result. Worse yet, a pattern of shoddy sexual harassment investigations can lead to your company facing a class action lawsuit, or worse being found to be a hostile work environment.
Let’s look at three best practices of investigating sexual harassment claims, and why you should benchmark your policies and procedures against them.
First and foremost, once you receive a complaint, you are now responsible for scheduling a proper interview with the victim to document their experience, any witnesses to the incident, and lastly the perpetrator. Unless you have received proper training in conducting an interview of this nature, you should seek guidance from an HR or legal professional who has. Remember Bill Cosby, Fox News/ Roger Ailes/ Bill O’Reilly, Harvey Weinstein, Matt Lauer, Kevin Spacey, and the “me too” women who are now speaking out. You as their employer, the victim’s supervisor, and the perpetrator may be liable for not only ordinary damages, but also punitive damages if the behavior of the perpetrator should be deemed particularly detrimental to the victim’s work environment and job opportunities. These interviews must be performed properly to be used in a court of law if it comes to that.
Interviews should be scheduled in a closed office space, where the victim might feel comfortable revealing exactly what happened. Ask questions about the incident and gather details as to what exactly happened, and who did what. Ask questions and follow-up clarifying questions to ascertain everything that happened. Let’s pause for a moment and be clear of something, when I say gather details and information I mean in a way that you will be able to use it later when a legal claim is filed against your business. As good as your memory may be, understand this means documenting the conversation with actual notes. Whether you use an online note taking tool like Evernote, or a pen and paper notepad- I cannot stress enough the importance of jotting things down as you are conducting your interviews. How important is it, and can I just skip it and jog it to memory you may ask?
Consider that the Supreme Judicial Court of Massachusetts recently held that punitive damages in the amount of $500,000 should be awarded against a car dealership for failing to properly address a female employee’s sexual harassment claim. What did the car dealership do so wrong- the HR manager said she investigated the victim’s complaints, but neither she nor the dealer’s General Manager could present any notes of their alleged investigations1.
Documentation is extremely important, and thus after you have conducted your interviews you need to properly organize it. Properly organizing your notes is just the start, you should collect any electronic communications available to you that you learned about through the interviews. This includes email, text messages, any social media messages, video or audio surveillance, and any other electronic form of communication between the parties that your investigation uncovered. Remember that it is important not to interview the accused until you have interviewed the victim and gathered as much documentation as possible to support the victim’s claims.
Lastly, after interviewing everyone and gathering as much documentation as you can- take action! Your interviews and gathered documentation should provide you with a logical course of action to ensure that you remedy your work environment and prevent similar incidents from occurring in the future. You should make a determination as to whether or not harassment occurred, and take appropriate disciplinary action in accordance with the policies you have set forth in your employee handbook.
- Gyulakian v. Lexus of Watertown Inc., Mass., No. SJC-11959 (Aug. 24, 2016).