You Can’t Afford To Overlook Workplace Harassment Compliance

4 dos and don’ts to respond to—and resolve— employee complaints

You already know you’re bound by federal law to proactively prevent workplace harassment and to resolve harassment complaints when they arise. But workplace harassment compliance is complicated because incidents come in many forms—and so much is at stake.

Clearly, ignoring harassment complaints will only earn you both employee dissatisfaction and litigation risks. So it’s imperative that you equip yourself to respond to and resolve harassment complaints—without incurring legal liability, notes labor and employment lawyer Mark Tabakman.

What Is Harassment, Really?

Before you can prevent harassment you need to learn to identify it. The Equal Employment Opportunity Commission (EEOC) defines harassment as “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”

Sexual harassment claims are on the rise in the wake of the #MeToo movement. The EEOC further states “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

That’s a pretty hefty definition with a dose of ambiguity, asserts Dr. Susan Strauss, in “Stop Workplace Harassment and Create a Culture of Respect: Proven Prevention & Investigation Strategies.” In her book, Strauss examines what constitutes severe or pervasive behaviors, and explores the difference between bullying and psychological and sexual harassment.

There are two very clear implications in both the definition and case law surrounding sexual harassment, Strauss states, that any investigation will certainly examine:

1. Was the misconduct “unwelcome” to the target individual?
2. Was the behavior “severe” and/or “pervasive” enough that it interfered with an individual’s ability to do his/her job and created a hostile work environment?

What To Do When A Complaint Arises

At some point an employee will come forward with a harassment complaint—sexual or otherwise—and you will need to respond quickly and appropriately. Avoid being blindsided with these four dos and don’ts to handling a harassment complaint:

1. Don’t promise confidentiality. Victims of harassment are often embarrassed and will request confidentiality. However, as a human resources or management professional, you’re bound by law to pursue certain allegations—specifically sexual harassment—whether or not the employee wants you to, reminds The Balance Careers. A safer bet? Tell the employee that “if you can, you will keep the matter confidential,” states The Balance Careers (emphasis added). Assure the employee that you don’t intend to gossip, but serious allegations require that you investigate.
2. Do seek legal counsel. Of course, you should have a harassment policy in place, but that might not be enough to save you from litigation. On the contrary, “your company may face significant liability even if a low level supervisor fails to comply with company rules and policies,” states Forbes. In the case of sexual harassment, you can’t afford to leave out experienced legal counsel. These complaints can lead to costly punitive damages designed to punish the company for inappropriately handling the complaints, Forbes further suggests.
3. Don’t retaliate. Many victims don’t come forward because they fear retaliation such as termination, demotion, a change in job duties, isolation, and pay cuts, suggests Nolo. Reassure any employee who comes forward with a complaint that you won’t take this lightly. “It is against the law to punish someone for complaining about discrimination or harassment,” reminds Nolo.
4. Do investigate promptly. The law requires you to take prompt action, and it’s best to investigate while the details are fresh in everyone’s minds anyway. But how fast is prompt? “Investigations should occur between 24 and 48 hours after a complaint has been filed,” states Strauss. There are other benefits to jumping on the investigation: you will restore harmony within your organization, assure employees that you take complaints seriously, and reduce liability, confirms Strauss.

Learn How To Respond Accordingly

It’s so important to have an appropriate mechanism in place to respond to harassment complaints, affirms Mark Tabakman. Conducting an investigation is serious business and shouldn’t be taken lightly!

You can’t guess on the details—you must know your investigation obligations:

• Who should conduct the investigation?
• How long should the investigation take?
• What should you do during the investigation?

(This post first appeared in a ProfEd blog)

By Amy P on 5th November 2019m