Investigating Sexual Harassment

A great deal may be said about the proper way to respond to a claim of sexual harassment in the workplace; much more than may be addressed in this short article. The following represent some of the most important points:

First, take all complaints seriously, create a written record of a fair process, and try to make the employees comfortable with the process, assuring narrow disclosure without making promises about confidentiality.

Second, interview the complaining person. If requested, allow the complaining person to have a representative present. Obtain the facts, in writing if possible, including the identity of the alleged harasser and any witnesses. Ask the complainant what he or she would like to have done, and whether he or she is comfortable with existing working conditions pending investigation, but make no promises and voice no conclusions.

Third, determine an appropriate initial response pending the investigation. Consider separating the employee and the alleged harasser, changing the supervisory relationship, suspending the alleged harasser with pay, or providing the complaining person with paid leave.

Fourth, interview the alleged harasser. Obtain responses to each specific allegation, including the identity of witnesses. Again, make no promises and draw no conclusions. Advise the alleged harasser of the company's strict prohibition against any hint of retaliation.

Fifth, interview all potential witnesses, not just those identified by the complainant and the alleged harasser. You may re-interview the alleged harasser and victim. Be prepared to ask the hard questions if you do so. If either employee is consulting with legal counsel, you should as well.

Finally, review the evidence to determine whether it meets the legal test of either quid pro quo or "hostile environment" sexual harassment and determine the appropriate remedial action. Remember that your goal is not just to complete the formalities of the process, but to stop any sexual harassment from recurring.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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