How to investigate a sexual harassment complaint
Written by Working Women Advocates volunteer, Rebecca Motola-Barnes.
As an Human Resources professional, my faith in my profession has been shaken by the recent stories coming out of Silicon Valley told by women who were harassed out of their jobs. I have always believed that HR’s duty is to ensure that every employee has the opportunity to thrive in their job. This, in turn, benefits employers by getting the best work out of their employees. It is not possible for an employee to thrive, to do their best work, when they are afraid.
Unfortunately, it seems like many of my fellows in HR do not share this view. They believe they are ‘protecting the company’ by disregarding or minimizing harassment claims. I argue that in so doing, they are in fact putting the company at greater risk, both by letting the company break the law (harassment is illegal, as we’ll discuss), and by decreasing employee productivity.
So what do you do, as the HR representative, when an employee comes to you with a complaint of harassment?
First, you must know a little about employment law. In the United States, it is illegal to discriminate against an employee based on their status in a protected class*. Harassment, or the presence of a hostile work environment, defined as “severe and pervasive conduct that permeates the work environment and interferes with an employee’s ability to perform his or her job”, are forms of discrimination and therefore also illegal. (The size of the company at which these laws apply varies from state to state, but my rule of thumb is that harassment in any size organization should be stopped). Sex-based harassment is just one of many forms of discrimination, but one which is particularly pernicious in our so-called modern workplaces. Make sure to have anti-discrimination policies in place, including a sexual harassment prevention policy.
Now, armed with the knowledge that harassment is both detrimental to employee’s work output, as well as illegal and against company policy, you can proceed to action.
When an employee comes to you with a complaint, go into information-gathering mode. Let the employee do the talking! Don’t ask leading questions. Make sure to get as many details as possible: dates and times, locations, who was involved, who was observing, how it is affecting the employee’s work performance, and others who may also be affected. You will use these details to direct your investigation. I recommend taking notes, or recording (with permission). You may also ask the employee to provide a written statement. In this initial conversation, be sensitive to the employee’s emotional state, but maintain a professional demeanor. The employee wants to know that they are being taken seriously. At the end of the conversation, you should review company policy against harassment, as well as the procedure for conducting investigations, with the employee, so that they know what to expect going forward. You can also do this in a separate conversation, but it is a critical step. If it seems like any criminal activity occurred, notify the police.
Proceed with your investigation. Start by reviewing the details of the complaint. Schedule interviews with the individual or individuals accused of harassment, and observers who may have witnessed the harassment. Give them an overview of the complaint, and then let them talk, framing your questions as neutrally as possible. Your goal, again, is to get as many details as you can. Review the anti-harassment policy and investigation procedure with the accused individual(s), especially highlighting the fact that it is illegal for employees to be retaliated against for bringing forth a complaint. Retaliation against an employee who has brought a complaint is itself illegal, and if anyone in your organization punishes the employee because they made the complaint, disciplinary action is called for.
Collect any other relevant documentation: emails, text messages, chat logs, security camera footage, etc. You should ask the employee bringing complaint for any relevant documents, but also collect them independently.
Once you’ve conducted your interviews and collected documentation, you should have all the details you need to make a determination and finalize your written report. Unlike in a court of a law, you do not need to be “beyond the shadow of a doubt”, you only need to be reasonably certain that misconduct has occurred. Submit your report to your supervisor and/or appropriate company officials. Based on the type of misconduct that occurred, and your company policy, determine what corrective action to take. This may be anywhere from a warning, to termination. It is HR’s responsibility to make sure this happens in a timely manner.
I suspect that this step — taking corrective action — is often what paralyses HR professionals, and may even stop them from going through the investigative process in the first place. We convince ourselves that it can’t be that bad, the complaint must be overblown, and that it is easier to do nothing, that way nobody has to get in trouble. In my experience, conducting investigations actually alleviates a lot of these doubts. Gathering details helps you flesh out the problem. If the complaint is overblown, you’ll find that out during the investigation. More likely, you will uncover ways to improve your company’s culture, to everyone’s benefit. And, let’s not forget, you will be protecting your company by demonstrating that you took the complaint seriously, took steps to prove or disprove the allegation, and took action to correct illegal behaviour.
*protected class: in all 50 states, federal law makes it illegal to discriminate based on race, color, national origin, religion, sex (including pregnancy, childbirth, and related medical conditions), disability, age (40 and older), citizenship status, and/or genetic information. In addition, California state law also prohibits discrimination based on marital status, sexual orientation and identity, AIDS/HIV, medical condition, political activities or affiliations, military or veteran status, and/or status as a victim of domestic violence, assault, or stalking. [http://www.nolo.com/legal-encyclopedia/california-employment-discrimination-31690.html#]