How an employer goes about receiving, processing, and resolving an internal complaint of harassment one time is likely to have an impact on all employees’ confidence in their workplace reporting system moving forward. When there is a system that people have confidence in, where employees feel comfortable to voice concerns about workplace conduct, problems can be corrected before they rise to the level of becoming “severe and pervasive” unlawful conduct. If this system is not in place, or if managers don’t know how to handle complaints, it is all too easy for problems to magnify and worsen.
Harassment investigations: best practices
- Complete thorough investigations into harassment complaints promptly and efficiently.
- All investigations should proceed uniformly and treat employees consistently and fairly.
- Make sure complaint investigations are conducted by someone with training and experience in such matters, such as an HR officer or attorney, and preferably not a direct supervisor (whenever possible). The investigator should be objective and neutral, particularly when they are an internal employee.
- Help all employees feel safe to participate in the investigation by reinforcing that retaliation against anyone cooperating with an investigation is unlawful.
- Exercise your discretion to place employees on paid leave if necessary to protect the people complaining of harassment.
- Ensure a process where the accused is treated fairly and the complainant feels respected, which operates in accordance with any written policy.
- If you are inclined to tell employees not to talk to one another about the matter under investigation, understand that there may be implications under National Labor Relations Board precedent, or a collective bargaining agreement, and you should seek legal advice.
When an employer finds that some inappropriate or harassing conduct occurred in their workplace, whether or not it meets the legal standard for harassment, it can be difficult to know the best course of action. Here are some things to keep in mind:
- The finding must be taken seriously. Any instance of abuse, assault, nonconsensual touch, ridicule, bullying, or stereotyping based on a protected category is conduct which could lead to a hostile work environment.
- The employer’s obligation is to address harassment that has occurred, put a stop to it, and prevent it from happening again.
- It’s important not to wait for harassment to become “severe or pervasive” before taking action.
- Failing to act to stop harassment against a worker can result in legal liability for the employer, and possibly individual liability for a manager or supervisor.
- Some options to explore for addressing the conduct of a harasser and preventing future harassment include: imposing discipline or corrective action; reassignment; demotion; or requiring harassers to attend specific training or counseling sessions. The goal is to make the harassing behavior stop.
- A complaint or an investigation alone could be a flag that more training for employees would be beneficial.
- Even if immediate corrective action is taken, a victim of harassment may still decide to pursue a charge of discrimination or lawsuit. Other employees or supervisors must not be allowed to interfere in the victim’s pursuit of their legal rights.
- When a complaint resolves, employers should clearly explain the legal prohibitions against retaliation. All parties need to know that retaliation of any kind will not be tolerated, and should be reported to the employer.
What happens if the harassment complaint investigation concludes that unlawful harassment did not occur? Is my job as an employer done?
No. Sometimes, harassment actually occurred but an investigation cannot uncover it. Other times, the behavior at issue did not rise to the level of harassment under the law, but was still inappropriate. Sometimes, the conduct may not have been even objectively inappropriate. Still, it’s important to address the underlying circumstances that caused an employee to feel uncomfortable in the workplace.
Employers should view any complaint as an opportunity to assess their workplace culture, anti-harassment practices and trainings. For instance, is the workplace too informal? Lacking in transparency? Conflicts of interests unaddressed? Many dating relationships? Supervisors who are conflict-avoidant? Failing to address these and other issues may lead to more complaints in the future.
Tips for addressing complaints about conduct that does not amount to unlawful harassment
Employers might be unsure about how to address complaints about inappropriate conduct that does not rise to the level of harassment under the law, such as personal conflicts, accidental slights, microaggressions, or relatively minor incidents. Here are some tips to transform what was a negative experience for one or more of your employees into something more positive:
- Approach complaints with an attitude that is welcoming, respectful, and supporting, rather than an attitude of alarm, resistance, or aversion to complaints.
- Assure the complainant that their complaint has been and will be taken seriously, given consideration, and that the employer will take action to stop harassment.
- View any complaints about inappropriate conduct as a reason and opportunity to assess your workplace culture, and consider existing dynamics to see whether improvements are needed in how your employees interact in the work environment and with one another.
- Do not scorn an employee who complained about conduct that was not found to be harassing or even inappropriate. Thank them for their courage coming forward and help all parties feel that they work in an environment that is positive and respectful for all.
In addition, there are many ways to equip employees with practical skills to understand, avoid, and put an end to inappropriate conduct that could give rise to a hostile work environment for members of protected groups. In the Education and Training section of this site, there are a number of resources about different training topics that can reinforce a positive, safe, and discrimination-free work environment for all employees.