Each Company must give employees a clear, easily understood, and written Anti-Harassment Policy. The policy must be discussed at meetings regularly.
Required components of the policy14:
- Management supports and is a role model of appropriate workplace behavior
- Training for supervisors and managers
- Specialized training for complaint handlers
- Policies and procedures for responding to and investigating complaints
- Prompt, thorough and fair investigations of complaints
- Prompt and fair remedial action
The policy should designate who will receive the complaints. Supervisors should report any complaints of misconduct to a designated company representative, such as a human resources manager, so that the company can try to resolve the claim internally.8
When a report of sexual harassment is received, make it a top priority. Determine if the reported behavior is serious enough to conduct a formal investigation.
If not serious, it may be resolved by counseling the individual. An example is an employee who is uncomfortable with an offhand compliment. The employee can be taught to confront the behavior and express their discomfort.14
If the behavior violates the rules or expectations, an investigation to determine facts must be conducted. Action must be taken to resolve the wrongful behavior based on the facts.14 Steps to perform a fair investigation includes:
- Interview the complaining party
- Interview the accused party
- Interview relevant witnesses
- Complete additional work to support the facts (i.e., review documents, visit the worksite, view videotapes, take pictures)
- Reach a reasonable and fair conclusion based on the facts.
Interviews should be thorough and done in person, if possible
The fact that the complaint is anonymous is not a reason to ignore the complaint.14 Anonymous complaints should be investigated like other complaints. If information is too general, an environmental assessment or survey could help refine the issues. An environmental assessment would include asking a workgroup about interactions, uncomfortable situations, or witnessed behavior.
The accused party is entitled to know the allegations being made against him/her. However, it is a good investigatory process to reveal the allegations during the interview rather than before the interview takes place. It may not be necessary to disclose the identity of the complaining party in some cases. Due process does not require showing the accused party a written complaint. Instead, it means making the allegations clear and getting a clear response.14
Not every witness needs to be interviewed. Exercise discretion to determine which witnesses have relevant information.
The confidentiality of the complaint is limited.14 The complaint should only be shared with those who need to know.
Supervisors should keep the investigation as confidential as possible. However, there have been court rulings that say it is inappropriate for an employer to require that employees keep the information secret since employees have the right to talk.
Investigations should be started and completed as soon as reasonable.
If there is no substantial disagreement about the factual allegations, it may not be necessary to make a credibility determination. However, many investigations require credibility determination. The investigator makes this determination. An investigator can still reach a reasonable conclusion even if there is no independent witness to an event.
He said/she said situations are not uncommon.14 Evidence could be the complaint may have been seen to be upset shortly after the event or may have told someone right after the event. This would tend to bolster his or her credibility. On the other hand, it would tend to bolster the accused party's credibility if the investigator learned that the complaint was months old, and the complainant was just given a negative performance review by the accused. Documents such as emails or texts might bolster or reduce a witness's credibility.
Even if there is no evidence other than the complainant's and accused party's respective statements, the investigator should weigh the credibility and make a finding.
Credibility factors to consider is the Burden of Proof.
The burden of proof is that there is a preponderance of the evidence (more likely than not). Civil courts use this standard in discrimination and harassment cases. Applying a higher burden of proof, such as a clear and convincing standard or beyond a reasonable doubt standard is not applicable in harassment cases.14
Investigators should carefully document witness interviews, findings, and steps taken in the investigation. Investigators should be consistent in their method of documentation. Documents should be retrained.