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Tips to help you investigate allegations of sexual harassment
By Mark Glenn
Once the duty to investigate an allegation of sexual harassment is triggered, employers must respond quickly with a thorough investigation. When conducting an investigation, bear these points in mind:
Select a neutral investigator and have the complaining employee approve that person. Often, the best choice is someone in human resources without management responsibility over any involved party.
Prepare an investigation plan. Decide which witnesses to interview and which documents to review. Generally, it is a good idea to ask the alleged victim and accused harasser who they think the potential witnesses are.
Document every step of the process, especially interviews of potential witnesses. It is critical to avoid expressing interpretations or judgments. Just record the facts.
Do not blame the victim, transfer the victim or retaliate in any way against the person who comes forward with the complaint.
At every opportunity, reaffirm your policy prohibiting sexual harassment and your commitment to immediate corrective action if harassment is found.
Once you have completed your investigation, take immediate and appropriate corrective action. Typically, this entails:
Stopping any ongoing harassment immediately.
Making the victim "whole" by restoring lost benefits or opportunities.
Disciplining the harasser.
Taking steps to minimize recurrence.
Such actions may include reaffirming the harassment policy and complaint procedure, sexual-harassment training seminars for all employees and periodic follow-up with the complainants.
Depending on the severity and frequency of the conduct, discipline can range from oral and written warnings to training and counseling, all the way to probation and discharge. In evaluating the reasonableness of an employer’s remedy, many courts also take into account the remedy’s deterrent effect and ability to deter potential harassers from unlawful conduct.
Even if your investigation concludes that harassment did not occur, or if you cannot conclude one way or the other, you still should take some action. For example, you can distribute a memo reinforcing your harassment policy and complaint procedures or you can schedule training seminars for all employees.
Attorney Mark Glenn’s practice includes defending businesses accused of sexual harassment. He can be reached at (505) 843-9440.
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