Conducting Effective Harassment Investigations

By Abena Sanders

Harassment in the call center is disruptive to both employee morale and an employer’s bottom line. While sexual harassment has assumed a prominent position in the human resources lexicon – in part because of its overrepresentation in popular culture – keep in mind that illegal harassment may be based on any category protected by Title VII of the Civil Rights Act, including race, national origin, disability, and age. At this point, nearly every employer has some version of a “no-harassment” policy or reporting procedure. However, merely featuring such policies prominently in an employee handbook is not sufficient protection under the law.

An employer may be held liable for harassment that is perpetrated by supervisors, co-employees or even by non-employees, such as customers and callers. According to the Supreme Court, general agency principles will determine whether an employer can be held liable for harassment, even by a non-supervisor. However, many courts have ruled that if an employer takes prompt and effective corrective action in the face of a harassment complaint, the employer will not be held liable. A thorough investigation is a key component of this process.

When an employee comes to a supervisor with a harassment complaint, it must be handled quickly, objectively, and effectively by the employer (typically by a human resources manager or office manager). While it would be impossible to address every fact pattern that could arise in a harassment investigation, an employer may be insulated from liability by adhering to five broad investigation guidelines.

Interview the Accuser

Above all, the investigation should begin almost immediately after notice of the complaint is provided to the employer. In a private place, a designated investigator should interview the complainant to obtain clear details about what occurred. He or she should determine the identity of the accused employee and ask objective “when, where, how, what” questions to flesh out the details of the incident. Whether the complaint involves offensive comments or physical contact, it’s important to obtain details about the nature and frequency of the occurrences, determine if there were any witnesses to the incidents, and find out whether the complainant has spoken to anyone else about it. The complainant should be assured that the matter will be investigated thoroughly and handled confidentially, without any retaliation (punishment or embarrassment) for coming forward.

Interview the Accused

Again, in a private place, the appointed investigator will conduct a similar interview with the employee accused of harassment, explaining the nature of the accusations against him or her and determining if the employee is familiar with the allegations. If so, the investigator should get specific details about the incident from the accused employee’s point of view and obtain specific admissions or denials of each allegation set forth by the accuser in the previous interview. If the accused employee asserts that the complainant is lying, the investigator will question him or her to find out if there is reason that the other party would make untruthful allegations. It may be useful to discover whether the parties had any romantic or social relationship outside of the employment setting. The employer might consider suspending the accused employee while the investigation is under way, particularly if the complainant feels threatened.

Review the Facts

In concluding the investigation, witnesses to the incident should be interviewed, as well as the supervisors for both the complainant and the accused. In particular, an employer should determine which supervisors, if any, have been alerted about the incidents. Once all of the relevant interviews have occurred, an employer should analyze the facts – including any investigation notes and documentary or physical evidence – for any inconsistencies or vague areas. The employer might consider visiting the physical site of the incident (if applicable) to see if there are any narrative points that do not “fit.” At this point, the employer will be in the best possible position to determine what actually happened, although this process can never be an exact science.

Determine the Appropriate Corrective Action

After the investigation, an employer must evaluate the facts with an eye toward effectively stopping any future harassment. Therefore, consider the severity and frequency of the conduct. For example, to a judge or a jury, any conduct involving physical touching will likely be seen as severe even if it only occurred on one occasion. Review the accused party’s file to see if he or she has engaged in any similar conduct in the past, which could be an indication it could happen again. In general – and in the eyes of the law – supervisors should be held to a more stringent standard than agents. In less serious cases, a brief suspension, demotion, re-assignment, or sensitivity training may be appropriate. However, if the conduct is serious and likely to reoccur, immediate discharge could be the only feasible remedy. Any corrective action taken should be thoroughly documented and include a summary of the investigation.

Follow Through

Employers sometimes believe the corrective action itself concludes the investigation along with the employer’s responsibility. This is not the case. Employers must also inform the complainant and the accused of the steps taken following the investigation. Furthermore, the investigator should periodically check in with the complainant to ensure the misconduct is not continuing. An employer should avoid any implication of being willfully blind in the face of potential future harassment.

Abena Sanders is with Fisher & Phillips LLP.

[From Connection Magazine November 2012]

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