By Norma Zeitler
Sexual and other types of workplace harassment continue to garner lots of attention by the media, and rightly so because every employee — from the lowest paid worker to the CEO — has the right to work in an environment that is free of unlawful harassment.
In my first article in this three-part series, I explained what harassment is, and best practices to prevent it. In my second article, I explained how to properly investigate a complaint about harassment, which is the first step in taking prompt and effective remedial action and is the obligation of every employer once it becomes aware of the harassment. Now, in part three, I will touch on how and when to write an investigation report and what is meant by effective remedial measures.
As you might have gathered from the first two articles, there is no “one size fits all” method of responding to a complaint of harassment. Instead, an employer should take into account the particular facts and circumstances of the situation at hand when determining how to proceed. That is particularly true when it comes to writing the investigation report and fashioning the remedial measures to be taken.
As an initial matter, it is essential to understand that unless the report is written by a lawyer and contains the lawyer’s mental impressions, as opposed to the mere recitation of facts learned, neither the investigation report nor the notes taken in the course of the investigation are protected from disclosure by the attorney/client privilege. This means that if there is a lawsuit, you will be required to produce to the plaintiff all emails, notes, findings, reports, and other documents created as part of the investigation and the remedial action taken. So be very careful with what you put in writing. Less is often better.
With that said, an investigation report can be a valuable tool in showing that the company took the complaint seriously and that it took prompt action. A well-constructed written report should include a list of the allegations, and for each, whether the investigator was able to determine if the allegations were true. In many instances, the alleged victim says certain things happened, the alleged harasser denies each of them, and there are no witnesses. In those instances, the investigator should attempt to gauge the credibility of the alleged victim and the alleged harasser. In doing so, the investigator should consider things like:
- How long ago did the alleged event occur and is there a motive in play? For example, a recent poor performance review.
- Has anyone else complained about the alleged harasser?
- Are there circumstances that would support one version of the events over another?
- Did any of the witnesses appear hesitant to answer the questions posed, and most importantly, what does your gut instinct say?
It is not uncommon, even after considering and answering the above questions, for the investigator to conclude that it is impossible to determine, one way or the other, whether the events of the complaint actually happened. If this is the case, the investigator should simply document in the report why the investigator was unable to determine whether the harassment occurred.
Once the investigation is completed, it is time for the employer to take effective remedial action. As you might guess, there is no bright-line rule that defines the meaning of the phrase effective remedial action. Instead, the remedial action to be taken should be based on the facts and circumstances of the particular situation (see graphic at right).
Effective remedial action ranges from a simple reminder of the employer’s policies to termination – again, depending on the frequency and severity of the conduct and whether
it was substantiated.
When fashioning the remedy, employers must remember that the effectiveness of the remedial action will be judged with the benefit of hindsight. That is, if the harassment continues and the victim files a lawsuit, a jury will decide long after the fact whether the action taken by the employer was effective. With this in mind, once the investigation has been completed and the remedial action has been taken, the employer should:
- Remind the alleged harasser of the employer’s policy prohibiting harassment, as well as retaliation, and inform him or her of the disciplinary action to be taken.
- Let the alleged victim know that the investigation has been completed, that appropriate action has been taken, and that the victim should immediately report any further harassment and/or retaliation.
- Document that each of the above items have been done.
- Follow up with the alleged victim periodically to make certain that all is OK.
To summarize, it is critical for every employer to put in place an effective harassment policy. It also is crucial that every employer take prompt and effective remedial action when faced with a complaint of harassment. This three-part series provides ideas on how to do this. But like most things in the HR space, these ideas are not a substitute for expert legal advice. So, unless you have an experienced HR professional to guide you, you would be well-served to retain an experienced HR attorney to help you navigate this process if you ever are the recipient of a complaint of harassment.
Norma Zeitler is an attorney and partner in the Chicago office of Barnes and Thornburg LLP. The firm serves as NWFA’s legal counsel. For more than two decades, Norma has counseled clients on a variety of employment law matters and litigated employment law cases. She can be reached at email@example.com or 312.214.8312.