Sexual harassment persists today in the workplace despite many positive changes in both employment laws and workplace culture. When your business is faced with a sexual harassment allegation, handling an investigation requires skill. Using best practices in investigating sexual harassment allegations is important for a number of reasons. Those reasons include:
- Reducing your company’s legal and reputational exposure for any harassment that may have occurred;
- Deterring future harassment from occurring;
- Understanding what each party believed happened before each side’s positions harden or they retain counsel; and
- Satisfying the claimant’s desires for justice and possibly preventing a lawsuit.
Conducting an investigation using best practices can help mitigate damage. It can also help set your company up for success if a claim does proceed to litigation. However, it can actually increase liability if a sexual harassment investigation is not conducted according to best practices. Our team at Smithey Law Group LLC has extensive experience in helping companies like yours create sexual harassment investigation best practices. We’ll guide you through some considerations on developing best practices in investigating sexual harassment allegations and what next steps might be.
Concerns about Developing Best Practices
According to a survey conducted a few years back, more than one-third of all women in the workplace have experienced unwanted sexual advances while at work. Once a claim of harassment in the workplace arises, an employer has an affirmative duty to investigate. Developing an investigation protocol is normally something a human resources (HR) department does.
Traditionally, employees think HR only represents the employer’s interests. This can be a concern for employees who want to advance a claim. It can also be a concern for HR departments who want to both represent employee interests and protect the company. When using best practices in investigating sexual harassment allegations, it is possible for HR departments to address both these concerns.
Challenges in Creating Best Practices
Sometimes the challenges in developing best practices in investigating sexual harassment allegations have more to do with the culture of the organization than employment laws. Sexual harassment claims often stem from junior employees reporting the bad behavior of their superiors. Individuals must identify potentially embarrassing behavior that they and others have engaged in when they report a claim.
In an organizational culture with rigid reporting lines and other cultural barriers to reporting sexual harassment, it may be a challenge to create an investigation process that serves both employees and the company. It’s often not just that people are afraid of reporting sexual harassment. It is often that they are afraid of the consequences that they will face for reporting harassment. Developing best practices in investigating sexual harassment allegations means identifying those barriers and working through them.
Creating a Proper Investigation Process
Employers should have a proper, written internal complaint process. This should be the very first step in developing sexual harassment allegation investigations. Investigate all allegations submitted through the complaint process. Some complaints will require more time and resources than others. Once the initial complaint is received, there may be several different steps and stages in developing best practices.
Identify the Nature of the Investigation
It is very important to identify the nature of the investigation you need to undertake before you undertake it. Is the sexual harassment complaint about an unwanted touching? Is the allegation about sexual comments and notes over a long period of time? Is there documentary evidence? Each of these pieces of information will influence what the nature of the investigation will be.
An experienced unwanted sexual advances lawyer, like our team at Smithey Law Group LLC, can help you in crafting procedures for your investigations. Our team has decades of experience working with clients on complex sexual harassment allegation investigations.
Identify Who Should Conduct the Investigation
Once you have identified what the nature of the investigation is, then it’s crucial to identify who from your organization will conduct it. Should the investigation be conducted by HR? In some situations, HR is the ideal party to gather information in a sexual harassment investigation. However, in other circumstances, the stakes are high and the mood is tense before the investigation can even begin. With that in mind, an internal legal team might be better suited for the task.
In some unique circumstances, an independent party, like an outside law firm, might even be called in to investigate. Best practices are highly situation-dependent. A labor and employment legal matters attorney well-versed in sexual harassment allegations can help you decide how best to proceed.
Identify Methods to Be Used in the Investigation
Some methods to consider include:
- Will investigations conducted by attorneys be protected from later disclosure?
- Will written statements of the parties be required?
- Will the identity of the claimant be revealed and in what context?
- How should witnesses be interviewed?
- What should the protocol be if the claimant refuses to cooperate?
This is not an exhaustive list of questions to consider in best practices in investigating sexual harassment allegations. Many other considerations and methods may apply. Talking to an experienced team of labor & employment legal matters legal team can help you understand all the different investigation methods to consider. Our team at Smithey Law Group LLC is here to help you!
Identify the Form the Investigation Should Take
There is no one ideal form for an investigation protocol when creating best practices for investigating sexual harassment allegations. By understanding the culture of your company and the nature of the complaint, you can begin to develop stronger and stronger investigation procedures. These strong procedures will benefit both the company and your employees for years to come.
Consulting with an Employment Legal Matters Lawyer
Developing best practices around sexual harassment allegation investigations is a delicate subject. It requires skill and a lot planning to successfully investigate and resolve sexual harassment allegations to the satisfaction of all parties. Our team at Smithey Law Group LLC can help you successfully develop your best practices. Joyce E. Smithey and her colleagues have decades of experience in all aspects of labor and employment law. Call 410-609-6939 or request an appointment online to discuss your matter in confidence today.