It seems you can’t turn on the news without hearing about some form of harassment claim these days. When those allegations hit close to home and are made within your own organization, the news is even more unsettling.
Do you have a plan in place to handle harassment claims? Are you even sure what constitutes harassment? In this article, we’ll provide an overview of the steps you should take when responding to harassment or discrimination claims to protect your employees, your brand and your organization.
When an employee approaches you or a manager about workplace harassment, chances are the situation has been brewing for some time, and emotions and tensions may be heightened. It’s important to give the person time to express his or her concerns and to take the allegations seriously. Show concern, listen and assure that the person’s dignity will be upheld, confidentiality will be preserved as much as possible and that there will be a prompt and thorough investigation.
Document every detail of the conversation and confirm those details with the individual, and clearly outline next steps for addressing the situation. Ask how the person would like to see the situation resolved, and assure him or her that every measure will be taken to resolve the issue while not making any promises regarding corrective actions. Commit to getting back to the individual with the organizations final determination after a thorough investigation takes place.
How you handle this initial interaction is critical and sets the foundation for the investigation moving forward. If the complainant feels dismissed, that the claims aren’t being taken seriously or that the process is being mishandled, it sets the scene for potential litigation.
If an individual files a harassment complaint with a manager, that manager could be tempted to confront the individual being accused of the misconduct or, worse yet, call the accused into his or her office to discuss the situation with the accuser in the room. However, it’s imperative to first notify HR and the legal department of the allegations being made to discuss next steps. They should have established protocols in place that must be followed to remain compliant and to protect the company and any individuals involved. You may also want to notify your board members.
Quickly assess the scope of an investigation and identify any witnesses or potential evidence. One of the most painstaking and potentially emotionally draining steps for all involved is conducting interviews with affected parties and witnesses. Tensions and tempers can flare, so ensure you have a level-headed investigator who can remain calm, has good people skills and will remain impartial (e.g., doesn’t have a relationship with any involved parties).
An investigation should only be conducted by those with proper training and experience, so don’t hesitate to hire outside help. In addition to interviews, investigators will need to review any relevant communications, such as emails, memos, notes or voicemails. Be sure to devote the necessary time and focus on getting to the bottom of the situation. The U.S. Equal Employment Opportunity Commission provides additional information related to an employer’s responsibilities involving harassment cases.
As an employer, it’s your responsibility to mitigate the risk of retaliation. Ensure that measures are taken to protect the person who raised the complaint, and instruct him or her to bring any concerns about retaliation to the investigator’s attention right away. Also inform the person being accused to not contact the complainant and to refrain from any actions that might be viewed as retaliatory, or potentially face immediate termination.
Depending on your existing work environment and the severity of the claim, additional protective measures may be appropriate, including reassignment of work duties so the two conflicting parties don’t have to work directly with one other. It also might be appropriate to place the accused wrongdoer on paid or unpaid leave, or allow the person who filed the complaint paid time off while the investigation takes place.
Hopefully, you’ve invested in Employment Practices Liability Insurance (EPLI) to cover potential litigation costs or other associated expenses, or took your insurance agent’s advice about placing riders on your business insurance policies to cover harassment or discrimination claims. After you’ve informed your legal counsel about the workplace harassment allegations and they’ve reviewed your insurance policy, you’ll want to notify your insurance agent to give him or her a heads up that there’s the potential for a claim. Your agent may offer additional insights about handling the investigation based on your coverage so, even if a claim never gets filed, you’ll still likely find value in the conversation. In the event you do file a claim, your broker can provide additional guidance as you work with the insurance company.
Proactively outlining employee expectations for appropriate conduct, the right to a safe and secure work environment and how to handle harassment claims before they occur is always the best approach. Draft a harassment policy as part of your employee handbook that includes information about unwelcome behavior or language, provides definitions of sexual harassment and other forms of harassment, how to file a complaint, how complaints will be documented, steps that will be taken, potential consequences, and so on. Also draft a media response plan in the event a situation escalates beyond the walls of your company. Enlist the help of HR experts to help you draft an engaging employee handbook and include your legal department in the review.
Beyond all the practical actions that need to be taken, perhaps the most important thing an employer can do to prevent such a claim from ever happening is to foster a culture of dignity, professionalism and respect. Remember, hostile work environments can not only violate the law, they impact the culture of your organization and minimize human potential. There’s much more to consider regarding workplace harassment than could possibly be covered in a single article, so contact McClone for a complimentary HR Gap Analysis to talk through your unique risks and challenges.