There is no shortage of news stories about the fallout that can come from harassment. Even if it takes place outside the workplace, harassment can affect an employer’s reputation and bottom line. When an employee makes a harassment complaint that involves specific allegations, an investigation is required. (An investigation may not be required if an employee merely makes a vague complaint about rudeness, for example.) Courts have ruled that failure to investigate amounts to discrimination. The law does offer safe harbors, however–policies and procedures that, if properly followed, may be taken as evidence that the complainant and the subject of the complaint were treated fairly.
One safe harbor is provided by what is called the Faragher/Ellerth defense. Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth are two cases from 1998. In these cases, the court ruled that employers may not be found liable for hostile workplace harassment under three conditions. One is that the complaining employee did not suffer an adverse action in their employment, for example a demotion or firing. Another is that any harassing behavior was promptly remedied. The third condition is the one for which the Faragher/Ellerth defense is best known: the complaining employee did not take advantage of established reporting procedures that would have given their employer an opportunity to remedy it. In short: since you didn’t tell us, how could we have known?
This third condition is a good reason to have a harassment reporting procedure in writing in an employee handbook. Typically, the procedure requires employees to take a complaint of harassment to a supervisor or the human resources department or, if the employee feels necessary, to someone of higher rank than their immediate supervisor. An employer can further protect itself by having employees sign acknowledgments that show they received a copy of the reporting procedure.
In addition to a properly worded reporting policy and a means of making sure that employees know what it is, an employer should also have established policies and procedures for what comes next: an investigation. The law offers a safe harbor at this step as well. Cotran v. Rollins Hudig Hall International, Inc., another 1998 case from California, often serves as an example.
In that case, an employee was accused of sexual harassment. After conducting an investigation, his employer fired him, and he sued. One question before the court was whether the investigation was properly conducted. Ultimately, the court ruled that the investigation (which found evidence of the employee’s wrongdoing) was properly conducted, and that therefore the employer had not treated the fired employee unfairly. Thus, a second safe harbor for employers is to conduct a proper investigation. Another way to think of Cotran is that it does not require an employer to prove harassment with the same thoroughness as it might in a courtroom. A workplace investigation does not have to abide by the same strict rules of a police investigation, for example. But that more relaxed standard still leaves plenty of room for mistakes.
- Don’t delay or fail to complete an investigation. Once a complaint is made, the clock starts ticking. If nothing happens after a complaint is made, a court is likely to draw unforgiving conclusions. An investigation should also come to an end promptly, or a court may infer that the investigation was deliberately left unresolved.
- Don’t make the complainant jump through hoops. The reporting procedure should be simple. It need not require a written statement or even the continuing cooperation of the complainant. Once a specific complaint is made, an investigation should begin.
- Don’t fail to conduct an honest investigation. Even if the complaint seems questionable, the employer is better off conducting an investigation. Ask for documents and electronic communications. Interview witnesses. Check attendance, surveillance, calendars, computer records, and so on. Obtain all the pertinent evidence and review it.
- Don’t leak. It is important to maintain confidentiality. The complainant, witnesses, and the person accused of misconduct should be able to present their evidence without worry that you will tell others. Keep in mind that employees may not be obliged to keep quiet, so while word may get around, it should not come from you.
- Don’t retaliate. Retaliation is a separate violation of the law.
- Don’t fail to reach a conclusion. After making an investigation, the employer is obliged to do something, even if the evidence does not go beyond “he said, she said.” Make a determination of what happened based on what evidence you have, including the credibility of the parties, and act on that determination.
As this list makes clear, most don’ts amount to a failure to take action in response to a complaint. So what actions should be taken?
The best way to conduct an investigation is according to procedures laid out in a prepared manual. If a complaint finds its way to a courtroom, an employer can show that it acted in good faith by following a proper procedure. Here are some do’s:
- Do keep a record. Record the date you received the complaint, the details of the complaint, and the dates on which investigative actions were taken until the complaint was resolved. Laws vary on how long the records should be kept; check your local laws. Three years is a rule of thumb.
- Do follow procedure as outlined in the prepared manual.
What are some recommended procedures for conducting an investigation? One thing to keep in mind is that the procedures for workplace investigations are not as strictly laid out as they are for police investigations. An employer may conduct an investigation in-house or may hire an outside investigator. If an employee is a member of a union, or if other special circumstances apply, there are additional procedures that must be followed. In general, however, discretion is allowed, so long as the investigation is conducted in good faith. With that in mind, here is short summary of how an investigation may be conducted.
Keep the investigation confidential
Use a private room where privacy and confidentiality may be maintained. The person conducting the investigation should be good at taking accurate notes. This is because often, people are more forthcoming if they are not being recorded. If a recording device is used, however, every recording should begin and end with a recitation of the time, date, persons present, matter under discussion, and a statement of consent to be recorded.
Notes may appear as evidence in court later, so they should be free of unprofessional commentary, and they should not be edited or “tidied up” after the fact. The investigator may begin a timeline of events, prepare a list of people to be interviewed, and set a desired completion date for the investigation. The investigator should be impartial. They may be a manager, member of the human resources department or an outside investigator.
The interviewer should be candid with the interviewees. The interviewer should not make promises, say that any conclusions have been reached, or make threats. The interviewer should also be honest about whom they represent—in most cases, the employer. The interviewer should let those questioned know that they may end the interview at any time.
Conduct thorough interviews
Interviews often start with the complainant. The investigator may ask open-ended questions, such as: “In your own words, what happened?” and use follow-up questions to try to ascertain dates, times, and other specifics. Every interviewee may be asked to provide evidence such as e-mail, texts, and other documents. The investigator may keep things on track by asking those interviewed to stick to specifics. Some other questions to ask include: “What did you say/do at the time?” “Did you speak to anyone about it?” (including doctors and therapists), and “What action do you want the company to take?”
The next interview may be the person accused or harassment. This person should be told why they are being interviewed and asked the same type of questions as the complainant. “What happened?” followed by questions specific to times and places.
Some additional questions to ask should address whether anyone else can speak to the alleged conduct. “Was anyone else there?” “Do you know of anyone else who may have been involved?” “Do you know of anyone else who may have relevant information?”
From these interviews a list of witnesses, if any, may be prepared, and the witnesses may be interviewed in the same impartial manner. As this is going on, the timeline may be filled in and a summary of agreed-upon facts prepared. As this process continues, the need for second interviews may arise as different accounts are compared.
Gather any documents and records that may be relevant to the investigation including, but not limited to, e-mails, texts, and calendars. These documents can help fill in gaps in the timeline, fill holes in witness statements, and establish witness credibility.
Make a reasonable, good-faith decision
Finally, after reviewing the evidence collected in the interview, the employer must make a decision on what action to take, put in writing, and include it in its investigation report. The law frowns on doing nothing.
Additionally, the decision must be reasonable. While it may be possible to resolve the issue with some training and memoranda, a good-faith investigation may end with one party’s credibility in better shape than the other’s, with attendant consequences. However, employers cannot shy away from making a reasonable, good-faith decision simply because an employee’s reputation may suffer without possibly losing safe harbor protection.
As the focus nationwide on harassment continues, employers must be prepared to respond to and protect themselves from claims within their workplace. This preparation includes having a written reporting policy and well-established investigation procedures. By being prepared, employers can take advantage of safe harbor rules that limit their liability from harassment claims.