Based on guidance from the EEOC and our team of HR pros, here’s how to develop timely and robust harassment reporting, investigation, and corrective action procedures. Some workplace behaviors are almost impossible not to report. If one of your employees juggled chainsaws at work, for example, you’d probably hear about it immediately.
I mean, imagine if you didn’t:
“Oh yeah, that dent on the ceiling is from when Nathalie was showing off her chainsaw juggling skills. Did we not tell you about that? Yeah, it’s why she was out of the office for a couple weeks. It was awesome. Too bad about her fingers, though.”
Sounds preposterous, right? And yet it’s precisely what happens in countless instances of workplace harassment. People who experience or witness harassment at work frequently neglect to disclose it, or wait years to report it.
A recent article in Lifehacker neatly sums up why (emphasis added):
“In the deluge of sexual harassment allegations over the last few months, one question keeps coming up: Why didn’t the victims report at the time? Well, for a bunch of reasons: they didn’t think anyone would believe them, or they didn’t think it was ‘bad enough’ to warrant an HR complaint, or they believed that speaking out would torpedo their career. But of all the people who’ve ever been harassed in the world, there are certainly a good number of people who simply didn’t know how to report—what steps to take, how to document, and to whom they should direct their grievances.”
The article goes on to detail a few ways any employee who experiences or witnesses harassment can take action, from following up with a supervisor to filing a complaint with the Equal Employment Opportunity Commission.
Although those are important forms of recourse, the responsibility to address harassment shouldn’t fall entirely on employees’ shoulders. According to the EEOC, every organization should have in place formalized, functional systems for reporting and investigating harassment, and for taking corrective actions against alleged perpetrators:
“Effective reporting systems for allegations of harassment are among the most critical elements of a holistic anti-harassment effort. A reporting system includes a means by which individuals who have experienced harassment can report the harassment and file a complaint, as well as a means by which employees who have observed harassment can report that to the employer.
Ultimately, how an employee who reports harassment (either directly experienced or observed) fares under the employer’s process will depend on how management and its representatives act during the process. If the process does not work well, it can make the overall situation in the workplace worse. If one employee reports harassment and has a bad experience using the system, one can presume that the next employee who experiences harassment will think twice before doing the same. Finally, ensuring that the process that commences following a report is fair to an individual accused of harassment contributes to all employees’ faith in the system.”
In other words, it’s up to employers to empower their employees. Employees take cues from leadership, and an employer’s action (or inaction) toward individuals accused of harassment not only impacts their workforce now, but sets the tone for months and years to come.
With that in mind, I’d like to share a few tips for developing swift, thorough, equitable, and legally compliant harassment reporting, investigation, and corrective action procedures. The following guidance comes from the EEOC, as well as the human resources experts at Complí’s HR Support Center.
(Please note that this article is not intended to constitute or convey legal advice.)
Does your organization make it easy for anyone—regardless of role, location, or language spoken—to report harassment? Does it make it easy for managers to quickly take action appropriate to the situation?
If not, your workplace could be at risk. In their 2016 report on harassment in the workplace, EEOC harassment task force co-chairs Chai R. Feldblum and Victoria A. Lipnic write that “[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.”
Harassment takes many forms, as should harassment reporting and resolution. Formal, internal investigations are sometimes—but not always—necessary, based on the information the person reporting the event can provide. Organizations should consider the severity of the complaint, whether any party involved has a history of disrespectful or discriminatory behavior, and the legal ramifications of the situation—all while reserving judgement until the investigation has been concluded. Our HR pros advise that, throughout the process, “strong consideration should be given to the question, ‘How will the evidence and overall process be viewed by a neutral third party if a charge or lawsuit results?’”
Act as Soon as Possible
This one’s simple: the faster your follow-up process, the better your results, and the better your chances you won’t lose trust with employees. The EEOC states that in addition to managers taking complaints seriously, any reporting system “must provide timely responses and investigations.”
The HR pros agree:
“If a complaint is filed, supervisors should immediately report any complaints to the HR contact within the company. All supervisors and managers within the company should be properly trained to assume personal responsibility for contacting the HR contact within the company if an employee files a complaint with them. Be aware that formal complaints are not necessary to trigger an investigation. Once a supervisor or HR contact is aware that possible misconduct has occurred, even if no complaint is filed, an investigation should be started. The more a company delays in addressing an issue, the higher the risk that they jeopardize their credibility with their employees.”
There are other, practical reasons to emphasize speed. Keep in mind that individuals who experience or observe harassment may feel threatened and afraid for their personal well-being; a timely response keeps them protected and keeps them confident in their employer. Plus, it’s a smart strategy in advance of a potential lawsuit or regulatory action:
“The more quickly the employer takes steps towards the investigation, the more likely they can preserve any relevant evidence and enable witnesses to more accurately recall the facts of what took place. If there are unavoidable delays in the process, document the reasons for such delays, and be sure to inform the concerned parties of the results once the investigation is complete.”
Take Steps to Safeguard Employees’ Privacy and Avoid Retaliation
Many people who report harassment want to remain anonymous, and for good reason: they are concerned the alleged harasser may retaliate against them. Unfortunately, the realities of investigations and legal disputes mean that employees’ identities cannot always be kept completely confidential.
That said, employers can and should take steps to protect employees’ privacy, as well as to stop retaliation before it can occur. The EEOC recommends that a system “must provide a supportive environment where employees feel safe to express their views and do not experience retribution,” but that “[t]he privacy of both the accuser and the accused should be protected to the greatest extent possible, consistent with legal obligations and conducting a thorough, effective investigation.”
Our friends at the HR Support Center recommend that organizations should keep complaints “on a need to know basis,” and that organizations should reiterate to anyone who does know that “the employer will not tolerate any form of unlawful harassment or retaliation against the individual who made the claim or any of the interviewees who participated in the investigation.” This is critical during interviews with both the individual or individuals reporting the event and the individual or individuals accused:
“When interviewing the potential offender, it is imperative that the employer communicates that no determination has been made yet. The employee should be informed that any interference with the investigation and/or retaliation is prohibited and is subject to disciplinary action, up to and including termination. Review the allegations that are being made, and allow the alleged wrongdoer the opportunity to share their side of the story. Be sure to ask if they recommend that you speak to any particular witnesses to the situation. “
Choose the Right Investigators
A good internal investigations process requires planning, a lengthy list of open-ended questions, a detailed timeline, and strategic considerations about legal liability. Above all, however, it starts with a good investigator. According to the EEOC, a harassment reporting and investigation system “must ensure that investigators are well-trained, objective, and neutral, especially where investigators are internal company employees.”
What makes a well-trained, objective, and neutral investigator? According to the HR pros, an investigator should not be closely involved in the situation, have a reputation for credibility and vigilance, and possess investigative experience as well as the capacity “to serve as a company witness if necessary.” HR managers typically fulfill this role, although employers should look toward outside legal counsel during situations that involve executives or high-level personnel. Note that an external investigator cannot represent the employer in any ensuing litigation.
The HR pros recommend that employers appoint two investigators, if possible, “so that one person can take notes, while the other can focus on questions and follow-up inquiries.” Additionally, this second investigator “can also serve as a witness to confirm events or statements that occurred during the interviews.”
Finally, investigators should document anything and everything related to the investigation. In addition to taking detailed notes about their actions, questions, and interviewees’ responses, interviewers should collect all supporting documentation—not just relevant workplace policies, but emails, text messages, and other documents from parties involved in the incident.
Documentation provides the basis for action. Per the HR Pros:
“Once all relevant personnel have been interviewed, documentation received, and all fact finding is complete, an investigation report should be prepared. The purpose of the report is to identify the policies or procedures that were allegedly violated, outline the steps that were followed in the investigation process, analyze any inconsistent or conflicting information, and determine to the best of the employer’s ability what actually occurred. It is important to keep in mind that this investigation report may be subject to discovery should the situation result in a lawsuit.
If any corrective action is necessary, it should be determined after all interviews are complete and the investigation report has been prepared. Corrective action should be administered in a timely manner. Potential action items may include training, disciplinary action, creating new policies, or revising existing policies. Ensure that any disciplinary action imposed is consistent with disciplinary action imposed in prior similar situations.”
Learn More—Live on 2/20/18
These tips are just, well, the very tip of what it takes to create a robust anti-harassment initiative in line with the EEOC’s guidance. At our next webinar, Anti-Harassment Initiative Best Practices, attendees will learn the 4 steps to creating an anti-harassment program that reduces legal risk and keeps employees safe and happy at work. Reserve your spot for the webinar today.