How should I conduct internal investigations regarding sexual harassment or discrimination?
Sexual harassment and discrimination investigations are among the most common investigations that occur in the workplace. The law requires an investigation of a claim of sexual harassment or unlawful discrimination. Failure to conduct a timely investigation can, in and of itself, constitute ratification by the employer of the unlawful conduct. In addition, regulations under Title VII of the Civil Rights Act of 1964 require that your company both (a) investigate and (b) take immediate corrective action to stop the behavior.
Failure to take immediate corrective action after a timely investigation, especially in cases of repeated harassment, could be evidence of the company's ''malice'' and therefore could be the basis for an award of punitive damages. Note that no other workplace situations (other than harassment or discrimination) legally require that a company conduct an internal investigation.
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Conducting sexual or other unlawful harassment investigations is challenging for employers because your organization can be sued by both the complaining party and the alleged harasser if you create a perception of inequity in handling the case. The regulations under Title VII define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
1. Submission to such conduct is made either explicitly or implicitly a term or condition of employment,
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive environment.
Failure to recognize and discover behavior that violates these guidelines could expose your company to liability. In California, for example, a sexual harassment claimant can receive awards for back pay, future pay, lost benefits, emotional distress damages, reasonable attorney fees, and, in cases of employer "malice," punitive damages.
On the other hand, the alleged harasser can also file a lawsuit against your company for wrongful termination, wrongful demotion, or defamation. It is not uncommon for former employees to attack your investigation as inadequate, superficial, or irresponsible.
With the gun cocked at your head from both directions in sexual harassment or discrimination claims, remember to proceed with the utmost caution. Equally important, remember to maintain a perception of fairness with both parties. These claims are often ''he-said-she said'' scenarios, without witnesses, in which both sides are acting on principle. Avoid appearing punitive or unreasonable. Respect both employees' points of view.
Conclude your investigation by keeping both sides abreast of what you've discovered. Finally, explain to the alleged wrongdoer that, regardless of reality, a perception problem exists. You have no choice but to act responsibly on the basis of the good-faith investigation that you conducted, and you hold all employees accountable for their own ''perception management.'' By softening the blow this way, you'll remove the defacing mechanism that is so often associated with sexual harassment or discrimination claims. Employees may not agree with your findings, but if they feel that you've handled the matter fairly and objectively, they can usually get on with their lives.
Remember that sexual harassment claims are evaluated on their impact, not their intent. And, since harassment is in the eye of the beholder, you must sensitize your staff to others' feelings and impress upon them a heightened level of responsibility for workplace behavior.
Two conditions have to occur for sexual harassment to take place. First, the harassment has to be (a) sexual or (b) gender-based in nature. Second, the conduct must be ''unwelcome.'' Remember, however, that employees can ''consent'' to behavior that they don't necessarily ''welcome.'' Since consent, therefore, doesn't preclude an employee from feeling harassed, then ridding your workplace of unnecessary exposure becomes the goal of your sexual harassment policy.
There are two types of sexual harassment: quid pro quo and a hostile work environment. The harassment checklist in Appendix K can be used consistently as a baseline report for gathering information regarding a sexual harassment charge. Whether or not you employ a checklist, bear in mind that such documents may be subpoenaed in the discovery process. They should consequently be reviewed with qualified legal counsel prior to their implementation. For more information, see What Every Manager Needs to Know About Sexual Harassment, by Orlov and Roumell (AMACOM, 1999).
