By George W. Skogstrom, Jr., Esq.
Sooner or later, one of your employees is going to come forward and tell you they are being sexually harassed. We receive calls from clients asking us how to handle these issues. As an employer you have a duty to investigate and prevent sexual harassment and cannot become a victim of the "Ostrich Syndrome"(medically referenced as Struthio Camelustitis--a common ailment suffered by employers confronted with any number of employee issues, the most obvious symptom of which is sticking one's head in the sand).
Since it is clear you have to do something once you have notice of an issue, how you investigate a sexual harassment claim is very important. An improper investigation can create serious problems, including intensified harassment, retaliation, shunning by co-workers, extra anxiety and stress and, ultimately, job loss. In some cases, a poorly conducted investigation can give rise to valid claims against an employer even where the underlying claim was baseless! We will identify some problem issues and suggest a more even-handed solution.
In Massachusetts you (the Company) are deemed responsible for all acts of sexual harassment by supervisors, regardless of whether you know or condoned the behavior. This is true whether the harassment is of the "hostile environment" variety or "quid pro quo" variety. An employer will be liable for harassment of an employee by non-supervisory personnel if the Company knew or should have known about the harassment and did nothing to stop it. In such circumstances the employer is often in an unavoidably adversarial position with the complainant during the investigation since it may find itself in a defensive position vis-a-vis the complainant unless it is fully prepared to accept liability and its financial consequences. Despite such difficulties the employer is legally charged with conducting an investigation and taking appropriate remedial action. In such circumstances the employer should:
* Inform the employee that his/her interests may conflict with the Company's;
* Determine if other employees had complained about the alleged harasser;
* Review prior discipline against the alleged harasser;
* Determine if there is an anti-harassment policy and if it was publicized and used;
* Determine if the Company has tolerated a hostile atmosphere.
In cases where an employee complains of harassing behavior by a co-worker where the Company genuinely had no notice, actual or constructive, of previous acts by the accused the employer may be genuinely neutral and may conduct a neutral investigation. In such cases the employer can legitimately conduct an investigation for purposes untainted by its need to develop its defense against the complaining employee, however, as a result of the adversarial stance reflexively assumed, many employers fail to conduct such investigations fairly.
Some employers investigate all allegations of sexual harassment, even "minor" instances when the complainant would rather they did not. Employers assume that, once they are on notice, they have an absolute duty to investigate. Such logic denies the potential victim an opportunity to handle the matter as he/she wishes, to their potential detriment and without benefit to the Company. The Company should urge the employee to go "on record" (pointing out that doing so may help other employees and/or prevent future instances) but, if the employee does not want to push the issue, the Company has no legitimate reason not to accede to the employee's wishes. In such cases, the employer should insure that two investigators are present when the accuser is interviewed and that his/her wishes are clearly noted. If the allegation is serious, the employer should explain that an investigation will occur and attempt to fashion a manner which protects the accuser's rights and calms his/her fears, while permitting the Company to end harassment that could expose the Company to liability.
A policy of always identifying the accuser and the nature of the allegation to the accused and/or witnesses is not a good policy. Investigators must use their discretion in investigating a claim, balancing the complainant's request for confidentiality against the Company's desire to find out what happened. Investigations sometimes (often?) result in retaliation (violence, threats of violence, hostile work environment, poor evaluations, etc.) despite the employer's assurances none would be tolerated. When employees learn someone has complained, they often criticize and/or ostracize the complainant. Employers cannot condone such conduct. There are many cases in which an employer was exonerated from the underlying allegation of harassment only to face liability and pay damages for the retaliatory misconduct of its personnel. In many of these cases the employer may have been able to avoid the retaliation by not disclosing the identity of the complainant or specifics of the complaint thereby making the likelihood of retaliation less.
Furthermore, victims and witnesses who know that their complaints will not be kept confidential are less likely to complain or report incidents in fear of retaliation, thereby affording harassers to continue without being challenged. The courts could even interpret a policy of disclosure as evidence of an ineffective anti-harassment policy.
Effective investigations often do not require disclosure. A general investigation, asking general questions about the work environment, including whether employees had seen any incidents of sexual harassment (promising confidentiality) may elicit several reports confirming the victim's allegations (or disclosing others). In some cases it may be appropriate to sequester the alleged harasser during the conduct of the investigation in order to prevent him/her from influencing other employees during the process.
Many employers begin to subject a complainant's conduct and performance to enhanced scrutiny following a complaint, sometimes deeming this necessary to evaluate the credibility of the complainant. This approach overlooks the fact that sexual harassment often causes diminishing work performance and can cause psychological or physical injury. In some cases the victim may respond with absenteeism to avoid contact with the accused. When harassment is the direct cause of performance problems, courts will not permit employers to sanction the complainant for diminished performance.
Employers must not blame the victim in fashioning a remedy. The neutral employer will focus on disciplining the harasser and will not assume the problem will go away if the complainant resigns. Transferring the complainant is not usually an appropriate remedy. If someone is to be transferred, it should probably be the harasser. By transferring the complainant, the employer invites a claim that it is retaliating against the accuser and not confronting the harassment.
Often an employer is strictly liable for sexual harassment, therefore, the most effective thing a company can do about harassment is prevent it. Companies should take positive steps to prevent harassment (implement and communicate a policy, publicize and use the policy, articulate and impose sanctions, train employees and create an effective complaint procedure with appropriate protections for the complainant's privacy and right to continued employment). Before you find yourself in the middle of a sexual harassment suit, call us and we will help you develop and implement policies that will help avoid harassment claims.