The #MeToo movement has helped bring workplace sexual harassment into focus. As more and more employees speak up about their concerns, complaints, and personal experiences, many employers struggle to appropriately respond to their individual concerns, develop protocols for handling these situations, and prevent further issues. Employees who report sexual harassment or other concerning behavior in the workplace may not know what to expect – and may fear the worst.
Retaliation and the Law: The Basic Protections
To bring a valid sexual harassment claim, an employee must demonstrate that illicit conduct or behavior in the workplace interfered with his or her work or created a hostile work environment (e.g., sexual advances, unwelcome verbal or physical attention, or other inappropriate sexually-based behavior that is so abusive, intimidating, or offensive that it unreasonably interferes with the victim’s ability to perform her or his work, or derogatory comments about one’s gender or sexuality).
Federal law protects employees from retaliation if they complain or participate in a complaint of workplace discrimination or harassment, either through internal company channels or to an outside body like the U.S. Equal Employment Opportunity Commission (EEOC), as long as the complaint was made in good faith. Prohibited acts of retaliation include, but are not limited to, demotion, transfer, termination, threats, increased scrutiny, and other negative employment consequences. At a very minimum, an employee who reports sexual harassment in the workplace should expect to be protected from overt or subtle retaliation in the workplace during and after the investigation into his or her claims.
Recommended Best Practices: Conducting Harassment Investigations
The EEOC has extensive resources for employers and employees working to establish and implement comprehensive response and prevention systems. One of the most important and fundamental parts of an effective investigation is for the company to act promptly in response to a complaint, although there are no explicit rules regarding what is an appropriate or acceptable window of time. Therefore, an investigation should be commenced as soon as possible after a complaint is made, either internally through designated HR and legal personnel or using independent outside counsel.
First, the investigators should gather documentary information, including a copy of the written complaint or any other memorialization of the original notice given to the company. Obtain the organization’s written anti-harassment policy, if it has one, and applicable portions of the personnel files and company records of both the complainant and the alleged harasser. Following that, the investigator should conduct interviews with the complainant, the alleged harasser, and any other witnesses or individuals who may have knowledge of the facts surrounding the allegations.
EEOC guidelines offer suggested interview questions for effective investigations. It notes that an investigator should ask the complainant to provide as much detail as possible about the incident or incidents, ask open-ended questions, allow the complainant the necessary time to provide informative responses, and ask follow-ups in order to elicit details the complainant may not initially realize are relevant. The EEOC advises that it may also be helpful to re-interview the complainant towards the end of the investigation so that the investigator can ask any follow-up questions and address other issues that arise during the course of the investigation.
When interviewing the person accused of harassment, the EEOC advises that the investigator should inform him or her of the allegations and record his or her responses. The alleged harasser should also be asked whether they know of any other people who may have relevant evidence and/or any documentation or information that may help disprove the allegations.
A thorough, complete investigation should conclude with a written report summarizing the investigator’s findings and making conclusions about the veracity of the claims. Ultimately, if an investigation concludes that wrongful conduct has occurred, the organization must implement appropriate discipline on the harasser; depending on the behavior, this could range from a verbal warning to termination.
Documentation and Preservation of Evidence
Recording statements on audio or videotape can help preserve an accurate record and protect the credibility of the investigation. In many states, it is legally permissible to record a conversation so long as one party to the conversation consents; make sure you know whether this is the case or whether the law in your jurisdiction requires the consent of all parties. The investigator should preserve any recordings with copies of the documents related to the complaint and investigation.
An employee complaining of sexual harassment in the workplace should be able to expect that his or her rights will be protected, but because of workers’ rights under the National Labor Relations Act, workplace investigators may not impose confidentiality restrictions on interviewees unless specific circumstances make it necessary. Circumstances that courts have found to necessitate imposing confidentiality include situations where:
- Witnesses are in danger;
- Evidence is in danger of being destroyed;
- Testimony is at risk of being fabricated;
- There is a need to prevent a cover-up; or
- Any other comparable serious threat.
When confidentiality is not warranted, the EEOC recommends investigators take steps to reduce the risk of witnesses discussing the matter, which can possibly compromise their recollections or complicate the ongoing investigation. This can be accomplished by scheduling interviews close in time to each other to reduce the chances of employees sharing information, intentionally or casually. Investigators are also permitted to ask for voluntary discretion on the part of each person being interviewed, provided they do not threaten the interviewees with adverse employment consequences if they do not comply.
Prioritizing Prevention and Education
Last year, the EEOC published a 75-page document entitled “Proposed Enforcement Guidance on Unlawful Harassment” and solicited comments from the public. As a result of the input it received, the EEOC revised the guidance, which is currently awaiting legislative committee response. The proposed guidance makes clear that the EEOC puts an affirmative duty on employers to respond to conduct that would not in itself be harassment in order to prevent it from escalating. Therefore, in addition to responding appropriately to ongoing violations, it’s vital for all levels of a company to embrace a preventative mentality.
Speak With an Employment Attorney About Your Workplace Harassment Claim
Despite the complexities and formalities, EEOC guidelines and other protocols are meant to protect employees like you – but they aren’t your only option for holding an aggressor responsible. If you have been the victim of sexual harassment in your workplace, please contact the attorneys in Sommers Schwartz’s Employment Litigation Group today – we’re here to help!