The rising number of harassment claims and lawsuits and changing state regulations are making companies sit up and take notice. And for a good reason. While harassment comes at a steep cost for people directly impacted by it, the entire company feels the impact. We have some guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and KPA HR experts for developing prompt, fair, and lawful harassment reporting, investigation, and corrective action procedures.
The responsibility to address harassment doesn’t fall entirely on employees’ shoulders. Employees follow an organization’s leadership; their action (or inaction) toward accused individuals not only affects their whole workforce but sets the tone for the future. Every organization needs formal systems for reporting and investigating harassment, and for taking corrective actions against alleged perpetrators.
Think About the Big Picture
Is it easy for anyone—regardless of role, location, or language spoken—to report harassment? Can managers respond quickly and appropriately to the scenario?
If your answer was no to any of those questions, your workplace might be at risk. A few years ago, the EEOC has a harassment task force, co-chaired by Chai R. Feldblum, and Victoria A. Lipnic, published a report discussing the significance of reporting structures:
“[t]here is a significant body of research establishing the many concerns that employees have with current reporting systems in their workplaces”—that is, that many existing harassment follow-up procedures fall short. Here’s how they characterize a flexible, robust system:
“[W]e heard broad support for reporting systems that are multifaceted, including a choice of procedures, and choices among multiple ‘complaint handlers.’ Such a robust reporting system might include options to file complaints with managers and human resource departments, via multi-lingual complaint hotlines, and via web-based complaint processing.
In addition, a multi-faceted system might offer an employee who complains about harassment various mechanisms for addressing the situation, depending on the type of conduct and workplace situation.”
Just as harassment takes many forms, so should harassment reporting and resolution. Formal, internal investigations are sometimes—but not always—necessary. Organizations should consider:
- The severity of the complaint.
- If any of the parties involved have a history of disrespectful or discriminatory behavior.
- The legal ramifications of the situation.
- Reserving judgment until the investigation has been concluded.
Our HR experts advise businesses to ask themselves: “How will a third party view the report and investigation if there is a charge or lawsuit?”
The faster your follow-up process, the better your results.
There are reasons for speed. Memory recall will be more accurate. Individuals who encounter or witness harassment may be concerned about their personal well-being. A timely response helps protect them and gives them confidence in their employer.
The EEOC advises employers should respond and conduct investigations in a timely manner. KPA HR experts advise:
- Supervisors should immediately report complaints to HR.
- All employee managers must be properly trained and know how to take responsibility for a complaint.
- The complaints don’t need to be formal to start an investigation.
- If a complaint isn’t filed, an investigation should still start.
- A faster response will preserve evidence and ensure memories from witnesses are fresh and accurate.
Protect employees’ privacy and stop retaliation before it can occur.
Safeguard Employees’ Privacy and Avoid Retaliation
Employers should take steps to protect employees’ privacy, as well as stop retaliation before it occurs. Complaints should be on a “need to know” basis and remind people who know that retaliation or harassment of the people involved in the claim is unacceptable. This is critical during interviews with the individuals involved in the event or reporting.
When speaking to the possible offender, remind them that:
- Nothing has been determined
- They can’t interfere with the investigation or face disciplinary action, including termination
- They will be able to share their side of the story
- Ask if there are other witnesses who can talk about the situation
Select an investigator that’s not close to the situation.
Choose the Right Investigators
An effective internal investigation process takes planning, lots of open-ended questions, a timeline, and strategic considerations about legal liability. But it really comes down to having a good investigator. According to the EEOC, investigators must be:
- Neutral, especially when they’re internal employees
HR managers typically fulfill this role, although outside legal counsel is wise when situations involve executives. It should be noted that an external investigator can’t represent the employer in any ensuing litigation.
Appoint two investigators, one who can help take notes and serve as a witness and the second person who can focus on leading the interviews and follow-up questions.
Documentation provides the basis for action.
It’s all about the details. In addition to taking thorough notes about actions, questions, and answers, interviewers should collect all supporting documentation—including emails, text messages, and documents from parties involved in the incident.
A final report should include the possibly violated policies, the steps taken in the investigation, analysis of contradictory information, and a final analysis of what happened.
After the report is finished, corrective action should be taken in a timely manner and should be consistent with similar situations. Possible actions could include:
- Disciplinary action
- Development of new or updating of policies and procedures
As harassment claims grow, it’s vital for employers to set an example for their employees when responding to harassment claims. Developing fair and responsive reporting, investigation, and corrective action procedures is the best to establish trust throughout the organization.