A prompt and thorough investigation of a
sexual harassment complaint is the employer’s best
defense in a harassment suit. This defense is not available,
however, unless the employer has complaint procedures that are
readily available to all employees. Such complaint procedures
need to (1)
identify the individuals designated to
take complaints who are unbiased and trained in the area of
sexual harassment; (2) maintain confidentiality to the fullest
extent possible; and (3) stress the importance of documentation
in all aspects of the complaint and investigation process.
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A model complaint procedure is set forth
at the end of this article. Here are the steps an employer
should perform in connection with the investigation.
• Step One: Interview the
complainant. Simple enough, but this is your opportunity to get
to the facts — all the facts.
• Step Two: Create a memo. Don’t
rely on memory; put the facts in writing to assist you in your
investigation.
• Step Three: Interview the
alleged offender.
• Step Four: Give the alleged
offender the opportunity to submit a written statement
summarizing his/her position with respect to the individualized
allegations made by complainant, and identifying all persons
who would corroborate his version of events.
• Step Five: Review the
statements of both the complainant and the accused to identify
points of agreement and disagreement. Separately list facts in
dispute for continuing investigation.
• Step Six: Re-interview the
complainant to discuss the accused’s version of events
and to highlight the facts in dispute.
• Step Seven: Interview
witnesses offered by the complainant and the accused.
• Step Eight: Meet with line
management, human re-sources management and legal counsel to
review the results of the investigation, to determine if
further investigation is required, and if not, how to conclude
the investigation.
• Step Nine: If the
investigation reveals that harassment occurred in violation of
company policy, determine what disciplinary action should be
imposed.
• Step Ten: Communicate the
results of the investigation to the parties and to management
personnel involved in the parties’ chain of command.
• Step Eleven: Clean up the file
and produce a final memorandum.
Sample sexual harassment policy
Sexual or Other Harassment: It is our
policy that there shall be no harassment of any of our
employees on account of sex or because of any other
classification protected by law. Harassment is an unacceptable
practice. It demeans individuals and creates unacceptable
stress for the entire organization.
Significant costs are involved and morale
is adversely affected. Work effectiveness declines. Persons
harassing others will be dealt with swiftly and vigorously. Any
employee who violates this policy is subject to disciplinary
action up to and including discharge.
Definition of Sexual Harassment: Sexual
harassment refers to behavior of a sexual nature which is
unwelcome and personally offensive to its recipients. Sexual
harassment is a form of employee misconduct which is demeaning
to another person and undermines the integrity of the
employment relationship. Unwelcome sexual advances, requests
for sexual favors and other verbal or physical conduct of a
sexual nature constitute “sexual harassment” when:
• Submission to such conduct is
made explicitly or implicitly a condition of an individual’s
employment;
• Submission to or rejection of
such conduct is used as a basis for an employment decision
affecting the employee; or
• The harassment has the purpose
or effect of unreasonably interfering with the employee’s
work performance or creating an environment which is
intimidating, hostile or offensive to the employee.
What To Do If You Believe Discrimination
Or Harassment Has Occurred: Any incident or situation that you
believe involves illegal discrimination or harassment, sexual
or otherwise, by any Company employee or third parties on our
premises over whom we have control, should be brought to the
immediate attention of your supervisor, your supervisor’s
supervisor, or the Human Resources Department. It is your
obligation as an employee to do so.
Any supervisor or manager who becomes
aware of any possible harassment should immediately advise the
Human Resources Department. Human Resources will handle such
matters in a lawful manner to ensure that such conduct does not
continue. No person will be adversely affected in employment
with the Company as a result of bringing complaints of
harassment. Such incidents or situations will be investigated
and any corrective action that the Company determines is
appropriate will be taken, up to and including discharge. Any
individual who intentionally makes a false claim of harassment
is subject to discipline, up to and including termination.
We cannot help you solve a problem if you
don’t tell us about it. We are always looking for ways to
keep communication channels open, and we want you to tell us
about your personal recommendations for improvements, as well
as about any problems you experience on the job. Should
questions or problems arise that affect your work, use the
following procedure:
Step 1: Within
a week of the occurrence of the problem, ask for a conference
to talk it over with your immediate supervisor.
Step 2: If
your supervisor does not resolve your problem or if you don’t
feel comfortable talking to your supervisor about it, ask to
meet with human resources or the company president.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollman-law.com has articles, sample policies, news and
other information on employee/employer relations.
