What you do after receiving an employee harassment complaint may influence whether your organization faces an expensive lawsuit. To avoid liability, as well as claims of negligence and retaliation, you need to know how to investigate an employee harassment complaint correctly.
Defining Harassment
According to the U.S. Equal Employment Opportunity Commission (EEOC), harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990.
Sexual harassment is a common and serious issue, but any unwelcome conduct can be considered harassment if is based on a protected class, including race, color, religion, sex, sexual orientation, gender identity, pregnancy, national origin, older age, disability, or genetic information. However, the EEOC says conduct isn’t unlawful unless it creates a work environment that is intimidating, hostile, or offensive to reasonable people. Petty slights and annoyances are not typically unlawful, nor are isolated incidents – unless they are extremely serious.
Harassment can take many forms, from offensive jokes and pictures to slurs, threats, mockery, and insults. For example, if someone regularly tells offensive sexist or racist jokes in the workplace, employees who feel uncomfortable may file claims of harassment. Likewise, if one person repeatedly makes fun of another, the conduct may lead to claims of harassment.
The alleged harasser may be a supervisor or boss, but this is not necessary for claims of harassment to be successful. Coworkers and even non-employees can be accused of harassment. For example, if customers regularly harass servers at a restaurant and management does nothing, the servers may file a harassment complaint. For example, USA Today says a former restaurant employee is suing a restaurant, claiming a customer discriminated against her based on her race, her coworkers harassed her and retaliated against her, and the employer failed to stop it.
Developing Strong Employee Harassment Policies
The EEOC says employers should take steps to prevent and correct unlawful harassment. These steps may include:
- Clearly communicating that harassment will not be tolerated
- Creating a harassment complaint process
- Providing anti-harassment training to managers and employees
- Taking immediate and appropriate action when an employee complains about alleged harassment
A written anti-harassment policy can help employers avoid claims involving harassment. The policy should explain what qualifies as harassment, that harassment is not allowed, what will happen to an employee who harasses another employee, and how employees should report an issue if they feel they are being harassed. With a clear policy, everyone is on the same page and the employer can handle complaints consistently.
Liability for Alleged Harassment
Failing to take corrective action can make employers liable for harassment.
The EEOC says employers are automatically liable when workplace harassment by a supervisor results in a negative employment action – for example, if an employee misses out on a promotion due to harassment.
Even if the harassment results in no negative employment action, the employer may be liable for the harassment and resulting hostile work environment. If a supervisor is the alleged harasser, the employer can avoid liability by showing that the company tried to prevent and promptly correct the conduct and provided preventative and corrective options that the alleged victim failed to use. If the alleged harasser is not a supervisor, employers may be liable if they knew (or should have known) about the harassment and didn’t take corrective action.
Let’s say you have an employee who believes she is being harassed by her supervisor. The employee doesn’t report anything to the company because there is no clear way to do so – her only contact is the supervisor. In this case, you may be liable.
Alternatively, let’s say there is a way for the employee to report the harassment to HR. However, HR fails to respond. Once again, you may be liable.
The above is true even if the harasser is not a supervisor. Let’s say the employee is being harassed by several coworkers. The employee reports the hostile work environment to a supervisor, but the supervisor does nothing to help. This failure to act could mean you are liable.
Responding to Harassment Complaints
Supervisors and HR teams must respond to harassment complaints promptly and appropriately.
It’s also important to avoid any reaction that the employee could interpret as retaliation. The EEOC says participating in the harassment complaint process is a protected activity and employers cannot punish employees or jobseekers who do so. This means if an employee files a harassment complaint or acts as a witness in a harassment investigation, the employer cannot reprimand or threaten the employee, increase scrutiny of the employee’s performance, give a performance review that is lower than it should be, demote the employee, spread false rumors about the employee, or otherwise act in any way designed to punish the employee.
Retaliation can make the situation worse, and employers who retaliate may be subject to large fines. The EEOC says a food distributor in Hawaii has agreed to pay $90,000 to resolve a race harassment and retaliation lawsuit. A worker claimed he received unwelcome comments about his race, but he was suspended and then terminated when he complained to management. This is exactly how management should NOT respond to a harassment complaint.
Harassment Investigations
If you receive an employee harassment complaint, you may need to carry out a harassment complaint investigation.
- Set the right tone. Employees are likely to be nervous and upset when filing a complaint. Respond with professionalism. Let them know you take harassment seriously and you will deal with the matter appropriately.
- Do not delay. Never ignore the complaint or hope it will resolve itself. Your response should be prompt.
- Inform all involved parties. The EEOC encourages employers to deal with the harasser directly to make it clear the conduct is unwelcome and needs to stop.
- Investigate as needed. If individuals dispute the alleged incident, you may need to investigate further. For example, you may need to talk to witnesses to determine what happened.
- Adhere to your employee harassment policy. Following your own policy can ensure your responses are consistent and help you avoid claims of discrimination.
- Take care to ensure your actions are compliant with federal, state, and local employee harassment laws. Consult with a legal expert before taking action.
- Document everything. Thorough investigation documentation may be useful for any additional complaints, disputes, or legal action.
- Do not retaliate against anyone for filing a complaint or acting as a witness in a complaint. Retaliation is illegal and will only increase your company’s liability.
Securing HR Support
Dealing with employee harassment complaints is one of the more difficult aspects of HR administration. Any missteps can result in expensive lawsuits and reputational harm to your company. If you need support, you may be interested in Higginbotham’s HR consulting and outsourcing services. Learn more.
