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When should you investigate a sexual harassment claim?

One thing to remember about sexual harassment: it is about power, not sex. Victims are usually highly avoidant and unwilling to report such instances, which is why a large percentage of sexual harassment claims go unreported. In situations where you have a serial harasser, such claims may not come out of the woodwork until years after one employee or former employee comes forward. Clients and customers can be harassers as well.

Which issues can you handle on your own? When should you contact an attorney? Once a claim of harassment has been made by an employee, do you understand what your responsibilities are? You need the knowledge and resources to conduct a prompt, non-biased, and complete investigation, or you risk making the situation worse.

If unsure, review your current sexual harassment training and reporting. If you do not have a harassment policy or have never conducted training, do not investigate on your own: contact an attorney to assist you immediately.

For those who do conduct training, the next step is to examine how your business handles complaints. Inadequate handling of a claim can have major ramifications. A Massachusetts Lexus dealership’s inadequate investigation was the focus of a 2016 sexual harassment case which resulted in a $240,000 damage award to the victim after they failed to take her accusations seriously.

If you have a harassment policy for your employees, do you have one directing HR on how to handle an investigation? If not, do you want to handle it internally or hire a company?

For those who choose to investigate in house, once conduct has been reported, formulate a plan. Think about:

• Scope of the investigation: to what extent is a detailed investigation necessary, based on the conduct?
• Who is responsible for the investigation?
• Who makes the final decision on whether the party engaged in prohibited behavior and issues the consequences?
• Based on the allegation, what kind of evidence is needed? Who will you interview?
• Avoid rushing through the process. Demonstrate that the allegations are taken seriously, with appropriate attention based on the facts.
• Treat the situation neutrally. Does the HR person investigating work with the accused regularly? Examine the risk of any personal or professional relationships that may create suspicion that such a claim was not seriously examined, or a source of implicit bias.

Once the investigation is complete, write a report summarizing how the facts were collected, who was spoken with and what standard was used to make a decision. Is it more likely than not, based on the evidence collected that the person committed the harassment? Such conduct must be addressed by management immediately if it is decided that it likely occurred. If the investigation finds misconduct, enact corrective and disciplinary action to prevent it from occurring again.

With a little forethought and planning, you can better manage the risk these situations pose to your business.