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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Importance of Effective Harassment Investigations
July 24, 2007, Volume 9, No. 30
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Importance of Effective Harassment Investigations
A good harassment investigation can protect your organization, while a
bad one can become an employee relations and legal fiasco. Follow the
proper process, and your investigations should result in the "right"
decisions.
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Editor's Note on Minimum Wage: The first of three increases to the
federal minimum wage takes effect today, raising the minimum wage
from $5.15 an hour to $5.85 an hour. (The rate increases again on July
24, 2008, to $6.55 an hour, and finally to $7.25 an hour on July 24,
2009.)
The Department of Labor has provided an updated minimum wage
poster, free of charge, on its Web site at
www.dol.gov/esa/regs/compliance/posters/flsa.htm. You can use this
document to meet your minimum wage posting requirements. |
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THIS WEEK'S E-TIP: Importance of Effective Harassment
Investigations
Recent court decisions emphasize that it is not enough just to
have a
written
harassment policy. You also must make sure that it is
implemented in an "effective" manner. This standard means you
must
be proactive and take steps to apply your policy properly.
In particular, you must be prepared to conduct an investigation
to
determine the nature and extent of any alleged harassment. Below
are
several tips for ensuring your harassment investigations are
fair and
effective.
Basic Principles of Harassment Investigations
As a general rule, all harassment complaints should be
investigated,
even when the complaining employee requests that nothing be done
or
when the complaint is anonymous. (And of course, all forms of
harassment, not just sexual harassment should be addressed since
courts have consistently found that harassment of any member of
a
protected class is a form of illegal discrimination.) The
investigation
should be undertaken promptly and completed as quickly as
possible for
several reasons.
First, the disruption caused by actual harassment or rumors can
be
substantial. In addition, as time passes, evidence can be lost
and
witnesses' memories often become less accurate and subject to
change.
Furthermore, the longer a resolution is delayed, the more
stressful the
situation becomes for both the complaining employee and the
accused
harasser. As a result, delays can lead to subsequent legal
claims for
emotional distress. And, evolving case law has established that
employers are liable for failing to take prompt and effective
action to
eliminate known hostile work environments. Therefore,
investigations
should be completed within a few days, if at all possible.
The Investigation Process
The process should provide a fair method so both sides can be
heard
and receive necessary information. Most experts recommend
interviewing the complaining party first to ensure that all
important details
and witnesses are identified promptly. The investigator should
be
sensitive to the emotional nature of this type of investigation
and should
be prepared to deal with employee embarrassment and anger. The
investigator then needs to be patient, but firm, in explaining
that precise
details are needed for an accurate investigation.
The interview of the alleged harasser may be even more difficult
because of the natural instinct of the accused to be defensive.
Therefore, interviewers must be objective and nonjudgmental and
encourage the accused to respond to each allegation. The
investigator
also should explain the disciplinary action possible if the
allegations are
found to be true. However, the investigator should not use
threats to
obtain information, but should explain matter-of-factly the
consequences
of not cooperating. Both parties should be told to avoid contact
with one
another, and you should implement measures to facilitate this
outcome.
Witnesses also should be interviewed as soon as possible, and
the
investigator should tell other witnesses as little as possible
about the
details of the complaint and question them only on matters about
which
they are likely to have information. These precautions should
reduce the
employer's exposure to later claims of defamation.
All responses should be documented and, if possible, statements
should
be put in writing and signed by the persons providing the
information. In
addition, all participants in the investigation should be
reminded that their
cooperation and confidentiality are required, that your policy
prohibits
retaliation, and that any retaliation should be reported
immediately. |
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Seven Tips for Interviewing the Involved Parties and Witnesses
The following is a list of suggestions for interviewing the parties and
witnesses:
- Remind the person being interviewed that retaliation for
participation in the investigation is prohibited and that any
retaliatory
behavior should be reported immediately;
- Be and appear as nonjudgmental and objective as possible;
- Ask open-ended questions and do not suggest answers;
- Get as much detail as possible, focusing on the specific facts of
what happened when, where, and how often;
- Do not show outrage or dismay at any answer (this may cause
interviewees to change their stories);
- Do not promise complete confidentiality or anonymity, or that
punishment will be less severe if the employee admits inappropriate
behavior;
- Document as much as possible about the interview, including the
person's answers, demeanor, gestures, accuracy of memory, and overall
credibility, and, where possible, obtain written statements signed by
the
witnesses.
Case Studies Show Importance of Investigations
A good investigation followed by prompt action to address any
harassment discovered can mean the difference between a lawsuit and a
productive work environment. It is very clear that delays in
investigating
and responding to complaints will be counted against the employer by
the courts.
For example, in Parker v. General Extrusions, Inc., 2007 U.S. App.
LEXIS 15176 (6th Cir. 2007), the court upheld a $50,000 punitive
damage award in a sex harassment case because the employer's
investigation of the complainant's allegations was "half-hearted at
best,
and at worst, a sham." The court said the failure to investigate,
coupled
with conduct intended to embarrass and ultimately drive the complaining
employee out of the company, demonstrated reckless indifference to the
rights of its employee.
In contrast, in McCurdy v. Ark. State Police, 375 F.3d 762 (8th Cir.
2004), cert. denied, 543 U.S. 1121 (2005), the court held that the
police
department was not liable because it took all steps that could
reasonably
be expected. The employer promptly investigated the employee's report
of sexual harassment within days of the incident, insulated her from
further offensive conduct, and took appropriate corrective measures,
which included demoting, transferring, and ultimately terminating the
offending employee.
Focus on Fairness
Harassment investigations can be difficult and time-consuming. But,
they are a vital component of your
harassment policy. If you conduct
them properly, they can help ensure that your decisions are based on
facts and perceived as fair. And, in situations where you determine that
your policy was not violated, a thorough investigation will help build
acceptance for your decision and provide strong support if you are
challenged in court or by a government agency. |
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^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information on harassment investigations in
Productive
Work Environment, Chapter 201A, note 7, as well as additional cases
showing effective and ineffective employer responses in note 22.
Not a subscriber? If you would like to order one of our policy
chapters,
go to:
http://www.hrpolicyanswers.com.
If you have any questions, please call us at 1-800-437-3735. We'll
be
happy to help you. |
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Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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