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Revisiting Best Practice Responses to the Sexual Harassment Complaint

  • By:
  • David Thurber
  • |
  • Mar. 8th, 2018

Often in a sexual harassment case, an employer will ignore the claim because they see it simply as a “he said - she said” standoff; a high-risk response at any time but certainly now in the #MeToo environment.  It may be a good time to review best practices whenever a complaint of sexual harassment is made regardless of the party’s gender or the limited evidence you think may exist.

1.  Always take the claim of harassment seriously whether it be sexual, religious or racial.
2.  Always have and follow your own policies on harassment, which should be in your employment handbook and kept current.
3.  Always respond timely, not next week or whenever you get around to it. Respond now. Depending on the nature of the harassment, an initial high-level decision may need to be made to separate the parties or even suspend one or both pending the investigation.  How you respond sends strong messages to all who are watching. You want to send the message that the company cares and has a zero tolerance for harassment in any context.
4.  Always involve HR staff who know the way around these issues generally.
5.  Always initiate an internal investigation with neutral or independent investigators:

Someone trained or experienced in investigating and interviewing the parties and any witnesses. Someone who understands the art of asking open ended questions as well as detailed questions to fully explore and understand what the witness may know firsthand.
A person who is competent, respected, and thoughtful.
People who will pursue all the facts and not be misled by emotions, bias, anger, or early conclusions.
Someone who can thoughtfully sort and sift and weigh the information received against company policy and the law to arrive at a reasoned conclusion. Triage the approach with a small group of folks to vet the conclusions and the process.

6.  Always communicate with all stakeholders the findings and the recommended course of action to be taken, if any.
7.  Always be prepared to entertain settlement discussions if the facts warrant doing so, or to participate in mediation if not arbitration when appropriate.

In any complaint that makes it to the Courthouse, the law will presume the facts alleged are true until sufficient evidence is produced to the contrary. That process takes time through discovery. Said another way, the “he said - she said” kind of claim will still require time and effort to fully develop the facts before a claim can be dismissed.  And then, if it is a close call or unclear, the Court will allow a jury to decide. After all, that is a jury’s job.

It is a risky proposition for an employer to ignore the claim of harassment even if it is perceived as a “he said - she said” type of situation, as it may not be.  In fact, failure to follow this reminder will increase the employer’s chances of failure at trial, and raise the stakes in any settlement discussions. Responding responsibly and timely will reinforce your mission and company values which most likely place mutual respect for individuals and your employees as your best asset as high priority values.