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Sexual Harassment Complaint Prevention and Response Checklist

December 21, 2017

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A clear and effectively implemented anti-harassment policy and complaint procedure helps employers prevent sexual harassment complaints; encourages employees to come forward when they experience harassment; serves as a road map for responding to harassment complaints; and provides an effective defense in litigation over sexual harassment claims.

Make sure that the employer does the following:

  • Forbid sexual harassment. Declare that all forms of discrimination, including sexual harassment, will not be tolerated.
  • Define the prohibited conduct. Explain what sexual harassment is, and define the two forms (hostile work environment and quid pro quo harassment).
  • Provide examples of prohibited harassment. Describe hypothetical workplace situations involving harassment. Note that the harassment may involve spoken or written words, images, and/or physical conduct.
  • Include a catch-all sentence. After providing examples, state that the list is illustrative and does not include all possible incidents that may lead to investigation and disciplinary action.
  • Prohibit harassment based on characteristics other than sex. Make the policy broad enough to apply to harassment that is not sexual in nature, such as harassment based on race, color, national origin, religion or creed, disability, age, marital status, or sexual orientation.
  • Apply the policy to all employees, regardless of position or title. The policy can also be applied to anyone who has a relationship with the employer, such as vendors, contractors, and volunteers.
  • Prohibit retaliation. The policy must prohibit retaliation against employees who complain of harassment and encourage reporting of instances of retaliation.
  • Outline the investigation procedure. Outline the employer’s process for investigating sexual harassment complaints so that employees will know what to expect. For more information on the investigation procedure, see the section on “Investigate and Resolve Sexual Harassment Complaints Promptly, Thoroughly, and Impartially” below.
  • Summarize possible consequences. State that in response to a finding that sexual harassment has occurred, the employer will impose discipline up to and including termination of employment.
  • Identify a variety of people to whom complaints can be directed. This group might include human resources staff, supervisors, and other managers. This allows employees to select the person they are most comfortable speaking with about their harassment complaint.
  • Emphasize that employees are not required to report complaints to their immediate supervisors. This will give employees who are harassed by their supervisors the option of filing complaints with other people in the organization and bypassing their supervisors.

Disseminate and Implement the Policy

No matter how well-drafted, the policy will not prevent harassment or encourage victims to report it if it is not effectively disseminated and widely implemented; therefore it is imperative to:

  • Distribute the policy to every employee. Ensure that the policy is in the employee handbook and that the handbook is distributed to every employee.
  • Employees must acknowledge policy. All employees should sign acknowledgment forms stating that they received and are aware of the employer’s sexual harassment policy.
  • Post the policy. Post the harassment policy prominently on bulletin boards throughout the workplace and on the employer’s website.
  • Train employees. Conduct training sessions for all employees on the harassment policy on a regular basis.
  • Train managers. Offer additional training for managers and supervisors on preventing harassment by or of their subordinates, handling complaints of harassment, and the potential for personal liability for their actions in addressing sexual harassment in the workplace.

Investigate and Resolve Sexual Harassment Complaints Promptly, Thoroughly, and Impartially

Among other benefits, employers that adhere to the following best practices will strengthen their defense in potential litigation over a sexual harassment claim:

  • Begin investigations promptly. Start the investigation as soon as possible after receiving the complaint, preferably the same day.
  • Weigh immediate action. Decide whether immediate or interim action is necessary, such as putting the alleged harasser on temporary leave or taking other measures to ensure the safety of the complaining employee.
  • Choose the investigator. Select an investigator or investigative team trained in dealing with sexual harassment issues and determine whether the investigation should be conducted by Human Resources, in-house counsel, or outside counsel.
  • Set timetable. Establish a general timeframe to complete the investigation.
  • Communicate with the complainant. Notify the complaining party of the investigation and keep him or her updated on its progress. Also, emphasize the following to the complaining employee:
    • The employer’s commitment to enforcing its anti-harassment policy
    • The employer’s commitment to conducting a careful and thorough investigation
    • The employer’s policy of limited disclosure of information as necessary to conduct the investigation and follow-up
    • The employer’s non-retaliation policy
  • Conduct interviews impartially and thoroughly. Allow the complaining party and the accused, as well as every other witness, a full opportunity to tell his or her side of the story.
    • Open interviews with brief explanations of the complaint and the investigation — but include only necessary details and keep the names of other witnesses confidential
    • Emphasize the employer’s strict prohibition on retaliating against witnesses for providing information in an investigation
    • Emphasize that the interviewee must keep the matters discussed confidential
    • Take notes, but do not record the interview
    • Do not volunteer opinions or investigative findings
    • Note the names of all potential witnesses referred to by the interviewee
    • Get as much factual information from the interviewee as possible, and, if necessary, ask questions that will distinguish it from opinions and workplace gossip
    • Explain that the interviewee (if it is not the complainant or accused) will not be informed of the outcome of the investigation
    • Get copies of all relevant documents referred to by the interviewee
    • Confirm the accuracy of all information elicited during your interviews, to the extent possible
    • Treat the interview in the same manner as witness testimony in a courtroom before a jury
  • Evaluate the information and make a finding. When deciding whether the sexual harassment complaint is meritorious, take the following steps:
    • Review the information gathered
    • Consider the credibility of each source and witness
    • Establish what is undisputed and what remains disputed
    • Determine what happened between the complaining employee and the accused
    • If you conclude that the complaint is meritorious, determine whether the facts indicate a single instance or a pattern of misconduct
    • Determine whether the conduct violated the employer’s sexual harassment policy and applicable federal, state, or local laws
    • Evaluate the employer’s potential liability, if any
    • Evaluate any potential liability for managers and supervisors
  • Determine the appropriate action. When deciding how to discipline a harasser, take into consideration the following factors:
    • The severity of the conduct
    • The relative positions of the complaining employee and the accused within the company
    • Whether the accused has been the subject of any prior complaints of misconduct
    • Action taken by the employer in response to prior similar complaints of harassment
    • Whether the proposed action will end ongoing harassment
    • Whether the proposed action will deter future harassment
  • Close the investigation. At the conclusion of the investigation:
    • Meet separately with the complaining employee and the accused and explain the findings of your investigation
    • If you have concluded that the complaint is valid, describe and explain any disciplinary or remedial action taken against the accused
    • If, however, you find that the complaint is unsubstantiated, communicate this fact to the complaining party and the accused
    • Reiterate the employer’s policy against retaliation, and that any perceived retaliation should be reported to the employer
    • Follow up with the complaining employee at regular intervals in the future to determine whether the action taken has been effective
    • Determine whether the employer should provide additional harassment training to the accused or to a broader group of employees, (e.g., everyone in the accused’s department or at the accused’s job level), or all employees
    • Gather all relevant documents, including the reports from the investigation, in a standalone file separate from the personnel files of the complaining employee and the accused
    • Be sure the employer has in place and/or establish a confidential internal system to track and monitor all sexual harassment complaints. Remember that the employer must not only ensure that the harassment stops, but it must also make efforts to deter any future harassment

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.

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