Five things employers must do when a sexual misconduct complaint is filed.
Sexual harassment complaints against high profile individuals such as Harvey Weinstein, Kevin Spacey, and Matt Lauer have received well-deserved attention. The #MeToo movement is growing and has already contributed to the rising number of sexual harassment complaints directed at employers and at the alleged individual perpetrators. All of this, coupled with a sense that “enough is enough,” certainly means that employers are going to be faced with an increasing number of sexual harassment complaints which must be promptly and effectively resolved. As such, it is crucial that employers know what to do with a complaint before it hits. While every case is different and employers should consult their attorneys for guidance, there are several things every employer should do.
First, consult your company’s harassment policy to determine what specific steps you must take, what standards apply, what options are available, and what the parties’ rights are. Of course, before a complaint is ever made, it is important to make sure that your policies and procedures related to handling sexual harassment complaints are up to date. If you have not adopted and published a sexual harassment policy, do so immediately. While it is beyond the scope of this article to address the contents of such a policy, employers should make sure that it is clear, concise and well-publicized within the company. It also is important that employees and supervisors to be trained on the policy. The last thing an employer needs is for an employee or supervisor to be able to truthfully claim that he/she did not know that there was such a company policy.
Second, select a competent, impartial investigator and “second chair” to assist that person. These persons should be familiar with company policy and trained in advance on how to conduct an effective investigation. The investigator may be someone from inside the company, although in some cases—due to factors such as media publicity or a lack of an impartial internal option—someone from outside the company may have to be hired. Of course, whoever the investigator may be, it is critical that he or she be competent. The investigator should have the availability to talk to the accused, the complainant, and any witness having relevant information and be able to discover and record the facts. Since it is highly likely that the parties (the accused and the complainant) and perhaps the witnesses will have different versions of the events, the investigator must be able to make credibility determinations as to what occurred. The law does not require a perfect investigation but does require one that is reasonable under the circumstances.
Third, through the investigator(s) you’ve chosen, investigate the complaint. Most policies contain both procedures for conducting an investigation into the complaint and a timeline for completing it. It is vital that these procedures be followed and if for some reason the timeline cannot be met, the affected parties should be notified thereof and given a revised schedule for completion of the investigation. Naturally, it is essential that your investigator gather and secure all relevant documents (paper and electronic). Also, confidentially is desirable (if not required by the policy) when conducting an investigation. This confidentially is necessary for many reasons, including the reputational interest of the accused and the complainant and the legitimacy of the investigation itself. Certainly, you do not want a general discussion among the members of the workforce or potential witnesses meeting to “get their story straight.” Absolute confidentiality cannot be promised, however, as there may be individuals who must be informed of the results of the investigation.
Fourth, assess what interim protective measures might be needed for the complainant and, as needed, offer and implement those measures. During the pendency of the investigation, the company must ensure that the complainant is in a “safe place” within the company. This may mean that job assignments and/or location thereof be temporarily adjusted. For example, you don’t want the complainant to continue to work for a supervisor who he/she accused of illegal harassment. When considering making adjustments in job responsibilities, remember in no event can you penalize the complainant. Example of such an impermissible penalty would be moving the complainant’s workplace fifty miles away at another facility or placing him/her on the “graveyard shift” for the ostensible purpose of separating the accused and the complainant. Depending on the size of the company, changing work place assignments can present logistical problems, but it is clear that these issues must be confronted sooner rather than later so as to avoid greater problems down the road. Once the investigation is complete, the company should make a determination as to how the situation that occurred should be remediated. This remediation can include sanctions upon any individual determined to have violated the sexual harassment policy and/or termination of employment. These sanctions must be appropriate based on the severity of the situation. Depending on the circumstances, care should be given to prevent contact between the accused and the complainant in the future. In some cases, due to the traumatic nature of the events, even subsequent visual contact between the occurred and complainant can be problematic.
Finally, be prepared to issue a response to inquiries about the case. Inquiries may come from external sources as well as internal ones, and even though an employer might be extremely limited in what it can say, often times it is important that an employer be prepared to say something beyond just “no comment.” A statement that demonstrates prompt attention to the matter without compromising the parties’ confidentiality or the employer’s legal defenses may therefore be an important part of the process. Such a statement should be prepared in consultation with legal counsel and, possibly, also with the help of a public relations professional. Ideally, any inquiries should be handled through a designated spokesperson who is intimately familiar with the prepared statement.
In conclusion, it is clear that complaints of sexual harassment occurring in the workplace cannot be ignored with the hope that “things will get better.” Even if the complainant says he/she doesn’t want “anybody to get in trouble,” the company’s obligations under the law do not allow it to comport with those wishes. All complaints of sexual harassment made in good faith must be thoroughly investigated and resolved in such a manner that a “repeat performance” is avoided.
Stephen L. Barker, Sturgill Turner’s Managing Member and four-time Best Lawyers Lexington Employment Lawyer of the Year, has been defending public and private employers for over four decades. Steve has served as a special investigator of employee misconduct when circumstances required the investigation be handled by an outside party. This article is not intended to constitute legal advice. Please consult an attorney to consider the unique facts of a sexual harassment complaint.