According to a 2018 Hiscox Workplace Harassment research, 39 percent of employees do not report incidences of sexual harassment because they are afraid that management will not handle the problem effectively.
Employers may have a sexual harassment policy in place, but that does not guarantee they are entirely prepared to address a complaint. Handling these occurrences can be considerably more challenging if you don't have an HR department. When employees are harassed in the workplace, they may not know who to turn to.
Table of contents
- How to Deal with Sexual Harassment at Work?
- What to do when you receive a sexual harassment complaint?
- Key Steps For Businesses Responding To Allegations Of Sexual Harassment or Discrimination
- Notify the Board of Directors as soon as possible if there are any serious allegations
- Take the necessary steps both during and after the investigation
- Include these clauses in a settlement agreement if you decide to settle
How to Deal with Sexual Harassment at Work?
Establish a firm anti-harassment policy
According to Phillip Maltin, an attorney specialising in labour and employment at Raines Feldman LLP, you may be able to prevent sexual harassment from occurring in the first place by developing a solid anti-harassment policy. Sexual harassment will not be tolerated, and any complaints will be thoroughly handled, according to the policy.
Employees should be given this policy at the moment of hire of sexual harassment. You should also specify how and to whom employees should report sexual harassment. According to Maltin, the policy of sexual harassment should be posted in a visible location, such as the staff lunchroom.
Take every accusation seriously
If a coworker sexually harasses an employee, acknowledge the situation and assure them that you will look into it right away. Assure the employee that coming forward will not result in reprisal.
Interview the people involved and keep a record of everything
Obtain as much information about the claimed sexual harassment occurrence as possible during your initial chat with the accuser. Sharp recommends that you inquire about facts such as the date, time, whether or not witnesses were present, and how many times these instances occurred of sexual harassment.
Examine the accused and the witnesses
To find out what employees who may have observed the incident saw, ask them open-ended questions. Inform them of the allegations and inquire about their version of events. Treat them with the same deference as the accuser, and keep track of what they say about sexual harassment.
Consider the facts and conclude
Review your notes after you've finished your inquiry to see if you believe there was any sexual harassment. If feasible, talk to a coworker about the situation to gain their perspective.
Regardless of your findings, it's critical to follow up with both the complainant and the accused to inform them of your decision. If you find that sexual harassment has occurred, take appropriate action, which may include punishing or even terminating the culprit.
Consider hiring an expert
It's difficult for any business owner to investigate sexual harassment complaints, but it's extremely difficult if your company is small enough that your employees feel more like family than coworkers.
According to Mirande Valbrune, employee relations and compliance professional, it would make sense to hire a professional, such as an HR services provider to investigate about sexual harassment.
Employment practises liability insurance (EPLI) can help cover legal costs if your company is sued over how it handled a sexual harassment complaint.
When an employee reports any sort of sexual harassment, the employer has a legal, ethical, moral, and employee relations obligation to examine the allegations completely and promptly. The employer cannot decide whether or not to believe the employee and must instead take him or her at his or her word.
What to do when you receive a sexual harassment complaint?
You should handle sexual harassment claims the same way you would any other official complaint filed by an employee. These are the steps you should follow if you're dealing with a sexual harassment accusation. Before filing a complaint, double-check that your company's sexual harassment policy has been publicised and distributed to all employees.
Provide multiple avenues for an employee to file a formal charge or complaint of sexual harassment. You don't want to make the employee's only option for complaining to the manager or supervisor, as this may be the person to whom the employee needs to complain about sexual harassment.
Human Resources offices are a great place to start. Unless they are the harasser, so are the CEO, president, or firm owner. If he or she is not involved, a manager is likewise a viable choice.
Assign the complaint to a member of the HR department of sexual harassment. This person should have a thorough understanding of the company, its personnel, and its history. Make a plan that includes all of the essential persons and situations to look into starting with the initial complaint. Plan the investigation based on what you know right now.
Speak with the employee who is voicing his or her dissatisfaction. Ensure that he or she is protected from retaliation and that, regardless of the investigation's findings, they took appropriate action in reporting the incident of sexual harassment.
Inform the employee that any retribution, perceived retaliation, or ongoing harassment the employee is experiencing must be reported promptly. Solicit the employee's version of the story in his or her own words. Take careful notes to ensure that the talk is properly documented of sexual harassment.
Make a list of important details such as dates, times, situations, witnesses, and anything else that comes to mind. Inform the person who has been accused that a complaint has been filed and that no retaliation or unethical behaviour will be permitted. Request patience from the person as you undertake a thorough examination of sexual harassment.
Assure the accused that a fair and impartial investigation will be done on both their and the accuser's behalf. In the same way, interview any prospective witnesses. Ask open-ended inquiries and look for data to back up or refute the employee's claims.
Take all of the information you've gathered and make a conclusion. With the knowledge you have, make the best judgement you can. To do the right thing, consult with other HR professionals.
Consult an attorney to make sure you're looking at the case objectively based on the evidence you have. Check to see if your attorney agrees with your decision. Make conclusions regarding whether or not sexual harassment occurred based on all of the documentation and guidance from coworkers and your attorney.
Based on your findings, apply the necessary discipline to the right people. If necessary, make changes to the task or assignment settings, or change a reporting assignment.
Recognize that you are not flawless and that no issue can be explored perfectly. Even if harassment has occurred, and you feel it has, you may not have any facts or witnesses to back up a complainant's claims.
Follow up and document your follow-up with the employee who made the original harassment allegation to ensure that no further incidences occur. In an investigative folder, keep documentation separate from the personnel file. Provide the same level of follow-up and documentation to the employee who may have been wrongfully accused.
Adjust working conditions fairly as needed for everyone's comfort and productivity. From a legal standpoint, the employer will want to avoid any appearance of the employee's complaint being ignored. Respond as soon as possible. Employers will not want such behaviour to exist in their workplace because it is unethical. Employee morale, trust, and fair treatment are all on the line.
The behaviours of an employer give strong signals about what another employee may expect in similar situations. Consider reprinting and reinforcing your sexual harassment policy throughout your entire company.
Allow the circumstances to lead your decision. Make sure you write and preserve thorough and accurate documentation in all circumstances. Employees who are dissatisfied with the findings of your investigation may pursue further legal action.
Key Steps For Businesses Responding To Allegations Of Sexual Harassment Or Discrimination
Sexual harassment and discrimination allegations appear to be at an all-time high in the workplace. Allegations in every industry, entertainment, technology, journalism, law, venture capital, banking, government, and more are reported in the media regularly.
Following an employee's allegation of harassment or discrimination, the employer's responses can be critical in limiting the company's possible liability and negative publicity. This article looks at the crucial actions a corporation can take in response to sexual harassment or discrimination charges, both in terms of dealing with the complaints in the workplace and in terms of dealing with any resulting litigation.
While legal and policy issues are important, effective communication is just as important, and a team of HR, legal, and (where appropriate) communications specialists should work closely with senior management to plan the company's response.
Get a lawyer
Allegations of sexual harassment or discrimination can result in significant liabilities, including punitive damages to punish the firm for improperly handling the complaints. Even if a low-level supervisor violates corporate rules and procedures, the corporation may suffer severe liabilities.
Not all of the appropriate responses to these assertions are simple, and many of them necessitates a thorough understanding of the underlying laws and regulations. To traverse the maze of connected legal difficulties, the corporation should engage outside legal counsel experienced in managing such claims as soon as possible.
Counsel can advise the corporation on how to comply with legal obligations for the response and whether or not an early resolution is advisable or attainable. The company can also take the necessary procedures to ensure that interactions with executives, Board members, and workers are protected by attorney-client privilege with the help of legal advice.
Notify the Board of Directors as soon as possible if there are any serious allegations
Based on their expertise in counselling other organisations, board members may be able to provide valuable assistance regarding challenging claims. Furthermore, Board members despise being caught off guard by negative news, especially if it appears in the media before they are aware of the claim.
As a result, once an employee makes a significant allegation of sexual harassment or discrimination, particularly one that is likely to attract media attention, the CEO should promptly notify the Board of Directors, ideally in conjunction with the General Counsel or outside counsel (to ensure the communication is privileged).
Respect the person who has filed a complaint
Employees typically find it difficult to file sexual harassment or discrimination accusations. They are concerned about the ramifications of their complaint and the impact it will have on others in the workplace. They may feel exposed and fearful of losing their jobs.
In early reactions to the complaining party, the employer should show respect, understanding, and concern. Employees and management may have acted inappropriately and in violation of corporate policies, and the complaint may be legitimately offended and concerned.
Thanking the employee for raising the problem and quickly initiating an investigation sends a message not only to the complaining employee but also to those who are observing the company's response. Employees who see their firm take issues seriously are more likely to seek internal solutions rather than going to court.
Investigate the complaint
Complaints of sexual harassment should be investigated as soon as possible by the company (including those which may initially appear to be meritless). Failure to take a complaint seriously might compound the problem and increase your culpability.
Investigations into these complaints of sexual harassment should be carried out by people who have the necessary skills and experience, as well as the ability to be objective and unbiased (i.e., who do not report to or have links with the people involved in the complaint).
As needed, legal counsel should be consulted, including on any thorny evidentiary or credibility concerns that may arise during the investigation of sexual harassment. In conjunction with counsel, the investigator should develop a starting plan for extensively assessing the conduct in question.
Suggestions for a thorough investigation
Determine the investigation's appropriate scope; the scope will vary depending on the allegations and should be evaluated if facts change about sexual harassment.
Select an investigator with strong interpersonal skills and sound judgement. In practically every investigation, both will be crucial. Hire an experienced neutral candidate from outside if you don't have one on staff. The Association of Workplace Investigators is a useful resource.
Document the reasons for the delay if the investigation is delayed (for example, because the appropriate internal investigator is on vacation or the organisation is looking for an appropriate outside investigator). The corporation may have to explain why it did not start investigating right away in court about sexual harassment incident.
From the start, the investigator should coordinate his or her work with legal counsel so that the company can evaluate whether the investigation is privileged. This is particularly critical when composing memos or notes related to the investigation.
The investigator should go over the company's harassment and discrimination rules and processes. Employee handbooks frequently specify such procedures (for example, who is accountable for investigating or relevant timelines), and you don't want to exacerbate the matter by failing to follow your stated regulations.
Assure the complaining party right away that the complaint will be taken seriously, that there will be no retaliation for filing it, and that any fears of reprisal should be brought to the investigator's attention right away so that they may be handled.
Instruct the accused not to contact the complainant about the allegation, and not to participate in retaliatory behaviour (or even conduct that could be construed as such). And if the accused breaks the rules (which occurs all the time) take action right away. During an investigation, it is not uncommon for an employee or executive to be fired for failing to follow these directions.
The Equal Employment Opportunity Commission (EEOC) of the United States provides sample questions for questioning the complainant and other witnesses, as well as other investigation-related information. See the Enforcement Guidance on Vicarious Employer Liability for Supervisory Harassment.
When acquiring and examining material, the investigator must retain an open mind and resist reaching a conclusion until all relevant data has been evaluated and assessed.
Encourage everyone engaged to retain the necessary confidentiality for a thorough investigation while avoiding overbearing mandates.
Consider asking the complainant what he or she hopes will happen as a consequence of the inquiry at the end of the interview. Although the corporation is not obligated to comply with unreasonable demands, some requests may be useful in constructively resolving the problems.
Take the necessary steps both during and after the investigation
A comprehensive investigation into sexual harassment or discrimination can take a long time, thus it may be appropriate for the employer to take action against the employee who raised the concerns right away.
The investigator should endeavour to conclude the complaint after reviewing all facts and resolving any credibility problems to the degree practicable. The investigator's findings should generally be coupled to determining whether the conduct in question violated the company's anti-harassment (and any related) regulations.
Harassment policies usually ban unacceptable behaviour that does not necessarily fit under legal standards of harassment or discrimination but is nonetheless prohibited by the firm. The making of an inappropriate joke, for example, may not fulfil the legal definition of harassment, but it may be forbidden under the policy.
If the organisation believes that a policy was broken and inappropriate behaviour occurred, suitable disciplinary action should be taken. Depending on the seriousness of the incident, appropriate discipline may include a warning, counselling, reduction in bonus, reduction in future compensation increases, suspension, or outright dismissal of the perpetrator.
Although specifics regarding the investigation should not go into personnel files, it is critical to meticulously document the disciplinary.
The complainant must be aware that the investigation has been completed, the findings (for example, that a policy violation occurred, that the investigation was unable to determine whether a policy violation occurred, or that the investigation revealed that no violation occurred), and that, if necessary, action has been taken to resolve the issue.
The employer should correct any improper actions taken against the complainant (for example, a lower-than-expected performance rating, unequal remuneration treatment, etc.) and determine whether an apology and explanation of the changes should be included of sexual harassment.
Even if the investigator decides that no policy violation occurred, the facts may indicate that anti-harassment or discrimination training, as well as written reminders of the business policy, would improve the workplace. In many circumstances, persons who act without thinking may require one-on-one training to encourage good behaviour and explicitly spell out the repercussions of further problematic behaviours.
Adopt an anti-harassment and anti-discrimination policy if your organisation doesn't already have one
In an ideal world, the company already has an anti-harassment and anti-discrimination policy in place (which is required by some state laws and expected by many jurors). If it doesn't have one, or if it does, but it doesn't address the issues below in language that is acceptable for the firm's culture, the organisation should create one or revise the one it already has.
Helpful policies are typically 2-3 pages long, with samples available from competent employment lawyers or HR experts of sexual harassment.
Collaborate with government organisations
The Equal Employment Opportunity Commission (EEOC) strongly recommends employers examine accusations of sexual harassment or other unfair employment practices as soon as possible. However, if an employee files an administrative charge charging the employer of discrimination, the EEOC or analogous state authorities may conduct their inquiry into the matter. The EEOC has some background information on the procedure of sexual harassment.
The employer must comply if the EEOC or other government agencies are engaged in the investigation of a complaint. A response to the complaint and the provision of relevant documents will almost certainly be required by the government agency.
Cooperation and document production should be coordinated with legal counsel because the company's reaction could result in agency action or cause issues in future litigation.
The Equal Employment Opportunity Commission (EEOC) offers a free, voluntary mediation service that is frequently used by the parties. The EEOC will usually postpone the deadline for the company's written response to the charge if both parties agree to participate.
Mediation, which is a confidential settlement and negotiation process led by qualified mediators and held in the EEOC's offices, might provide an early opportunity to resolve the issue. If the agency does not offer mediation, it will frequently agree to conduct one if both parties agree to participate.
Check to see if the dispute can be addressed through arbitration
If a lawsuit is threatened or filed, the corporation should check to see if any arbitration agreements apply to the claim of sexual harassment. For employers, arbitration includes drawbacks, such as the possibility of having to pay an arbitrator's fees (and good arbitrators can be expensive).
However, it has significant advantages, including less public exposure of the dispute, a faster and less formal procedure to completion, and a decision-maker who, unlike a juror, is less likely to allow unpleasant work experiences to influence his or her decision-making.
Hiring letters, employment agreements, benefit plans, bonus agreements, employee handbooks, and documents developed by outside HR suppliers may all contain arbitration clauses. Even though courts have concluded that arbitration agreements cannot be easily waived, you don't want to risk mistakenly waiving the agreement.
Don't retaliate in any way
Even if the initial allegation is found to be unsubstantiated, the company should guarantee that it does not retaliate against a complaining employee of sexual harassment.
Retaliation cases are more difficult to defend than harassment or discrimination claims, in part because juries assume that persons who have been unfairly accused have a natural motivation to retaliate.
Furthermore, courts have ruled that retaliation protections extend beyond the job related and that a falsely bad post-employment reference can be considered a violation of anti-retaliation legislation of sexual harassment.
Use caution when sending messages and emails
Executives frequently send a flurry of emails or messages in response to and seek to address a sexual harassment or discrimination accusation made by an employee. This can be quite problematic in the future, as the shock or concern may cause emotional and negative reactions to the claim.
During the case of sexual harassment, a corporation may be obliged to turn over these emails and texts (together with any other forms of communication, such as Slack messages and voicemails). The plaintiff's counsel may try to use these interactions as evidence of the company's bad faith, complicity, or retaliatory motive.
Documents should be saved
The corporation must put a legal hold on a claim after sexual harassment complaint has been filed. This means that any relevant emails, notes, and other documents should be saved rather than deleted or destroyed in the event of a lawsuit.
Failure to safeguard these papers may result in legal action. This can include monetary fines as well as evidentiary consequences, both of which might limit a company's capacity to adequately defend itself against accusations.
Submit a claim to your insurance company
Many businesses carry Employment Practices Liability Insurance (EPLI) or insurance policy riders that cover accusations of sexual harassment or discrimination. However, the insurer must be properly and promptly notified of a claim; otherwise, the company risks being denied coverage.
The ideal time to notify the insurer of a claim is after legal counsel has read the policy and both counsel and the insurance broker have made the communication. Insurers may also impose rate restrictions and require the permission of any litigation or arbitration counsel. Any insurer providing coverage for the claims will almost always require cooperation from the company.
Prepare a media plan
Reporters now have access to a large number of litigation files thanks to the emergence of online court dockets. A newly filed lawsuit will soon be exposed to the press on an online court site, and the media (which search the filings for interesting lawsuits) may begin reporting on it very quickly, possibly even before the corporation has been served with it.
If the company lacks an experienced spokesperson, such as a communication or PR director, it will need to organise its media house. Because the plaintiff may try to use the company's remarks to the press or employees as evidence of bad faith or malice (or possibly defamation), they must be carefully crafted, examined, and re-reviewed.
Analyze the consequences
When a corporation is accused of sexual harassment or discrimination, there can be a slew of unintended repercussions. Throughout the claims process, the company's CEO, Board of Directors, and outside counsel should carefully evaluate the concerns collaboratively.
Employee communications can be particularly delicate and difficult to handle about sexual harassment. The communication may have an impact on issues such as confidentiality, employee morale, and company liability.
Include these clauses in a settlement agreement if you decide to settle
- It's critical to have a well-drafted and legally enforceable Settlement Agreement in place if the employer decides to settle the sexual harassment or discrimination claim. The following are common terms included in such agreements:
- A comprehensive release and waiver of all claims against the corporation, its officers, employees, directors, shareholders, and agents, both known and unknown.
- Any responsibility on the part of the complaining party to keep the Settlement Agreement's provisions confidential.
- An obligation on the part of the sexual harassment complaining party to refrain from disparaging the employer, its officers, directors, shareholders, workers, and agents in the future.
- A promise by the complaining party not to sue or bring any action in connection with the claims discharged.
- An integration clause declaring that the Settlement Agreement contains the parties' whole understanding and agreement, superseding any prior or contemporaneous understanding or agreement concerning the Settlement Agreement's subject matter.
- The company's disclaimer of any liability or acknowledgement about the underlying claims.
- A statement that the agreement does not renounce any claims that cannot be waived by law.
- The employee's entitlement to future employment with the employer or its affiliates has been waived.
The legal exposure, disruption, effect on the company's reputation, length of the dispute, and costs incurred are all influenced by how a corporation responds to a charge of harassment or discrimination. The correct reaction to the issues raised in this essay will rely mainly on facts.
As a result, some of the advice provided above may not apply to a specific case, and different counsel may be required. However, the corporation can reduce liability and other negative effects on its business by carefully analysing the circumstances and taking thoughtful and appropriate action when faced with charges of sexual harassment or discrimination.
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Key Takeaways
- Employees should be given this policy at the moment of hire of sexual harassment. You should also specify how and to whom employees should report sexual harassment. According to Maltin, the policy of sexual harassment should be posted in a visible location, such as the staff lunchroom.
- To find out what employees who may have observed the incident saw, ask them open-ended questions. Inform them of the allegations and inquire about their version of events. Treat them with the same deference as the accuser, and keep track of what they say about sexual harassment.
- If a coworker sexually harasses an employee, acknowledge the situation and assure them that you will look into it right away. Assure the employee that coming forward will not result in reprisal.
- When an employee reports any sort of sexual harassment, the employer has a legal, ethical, moral, and employee relations obligation to examine the allegations completely and promptly. The employer cannot decide whether or not to believe the employee and must instead take him or her at his or her word.
- The behaviours of an employer give strong signals about what another employee may expect in similar situations. Consider reprinting and reinforcing your sexual harassment policy throughout your entire company.
- The employer must comply if the EEOC or other government agencies are engaged in the investigation of a complaint. A response to the complaint and the provision of relevant documents will almost certainly be required by the government agency.
- When a corporation is accused of sexual harassment or discrimination, there can be a slew of unintended repercussions. Throughout the claims process, the company's CEO, Board of Directors, and outside counsel should carefully evaluate the concerns collaboratively.
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