Investigating a claim of harassment can be intimidating, but we have a great resource available on the platform called Identifying and Preventing Workplace Harassment. For this response, we’ve provided a condensed overview of the steps for an investigation:
- Select an interviewer. This person should be an impartial manager, company officer, or HR representative. Ideally, they have completed training on conducting a harassment investigation. They should approach the investigation process without a presumption of guilt or innocence and with a commitment to being fair and thorough. The investigation should be conducted as expeditiously as possible after receiving the claim.
- Conduct interviews and gather evidence. Speak with the employee who made the complaint (if known), the accused employee, and any witnesses named. The questions asked during the interviews should not lead an interviewee toward a particular response and should not be accusatory in nature. The questions should be unbiased, open ended, and prepared in advance; don’t be afraid to ask follow-up questions. Also think about any documents, emails, photographs, videos, etc., that might exist and assist you in coming to a fair conclusion in your investigation.
- Make a decision and take action. Once the interviews are complete and all evidence is gathered, decide what to do and document the conclusions and actions taken. If the company determines that the accused employee violated the harassment or other workplace policy, appropriate disciplinary measures should be taken. What qualifies as appropriate will depend on the severity of behavior. A summary of the findings should be placed in the accused employee’s file. The accused employee should be reminded that any retaliation against their accuser is unacceptable.
- Inform the employee who made the complaint. Alert the complaining employee—and others with a true need to know—about the conclusions reached in your investigation. While you don’t need to share the specific disciplinary action taken (if any), the complaining employee should be assured that you took appropriate steps to address the current situation and prevent future harassment. Remind this employee that retaliation will not be tolerated and that they should let you know if they feel they’re experiencing any backlash because of their complaint.
Founded or unfounded Harassment charges can become an employer’s worst nightmare, even for small employers. Harassment Training may not currently be mandated in your state you’re but if you’re ever faced with a complaint, and you haven not implemented precautionary steps of formal Harassment Training for both employees and management, you’re exposing your company to extraordinary risk. To learn more, schedule a brief 10-minute walk though to learn how you can minimize your exposure with a minimal investment.
You need to investigate the matter. A racially insensitive comment could be considered harassment—unwelcome behavior that’s based on a protected class such as race. Harassment becomes unlawful if putting up with it is a condition of continued employment or if the conduct is severe or pervasive enough to create a work environment a reasonable person would consider intimidating, hostile, or abusive. (Note: Several states have lowered the bar for what constitutes illegal harassment and no longer require that certain behavior be severe or pervasive. This Q&A addresses the standards under federal law.)
If you find evidence that harassment or any policy violations occurred, you should follow up with the offending employee. Your response should match the severity of the offense. A mildly insensitive comment might warrant an educational conversation or a warning, whereas a racial slur might warrant a final warning or termination, depending on the circumstances.
Make sure to formally Document your findings and any disciplinary actions taken.
If you have questions about how to handle specific HR Situations or have an interest in making sure your company stays in compliance, give us a call. Over 152,000 US companies use our system to make sure their staff has the proper tools and resources to keep your HR house in order.
It depends. You can certainly share a copy of the original complaint with the person who filed it. You can also tell them about the general results and let them know whom they should speak to if the harassment continues.
You shouldn’t hand over investigation notes, witness statements, or other documentation. That information was shared with an expectation of confidentiality (at least whenever possible). Sharing would violate that trust and potentially deter employees from participating in future investigations. Likewise, the employee’s complaint shouldn’t be shared with anyone else. This, of course, includes the accused party. Aside from breaking confidence, it could lead to retaliation.
On a related note, since under state law personnel files may have to be provided to employees upon request, it’s best to keep investigation files separate from personnel files. It’s reasonable to include a copy of the general results of an investigation in the personnel file, but don’t include any complaints, investigation notes, or witness statements.
Yes, investigate the allegations even though the accusing employee has left the organization. If your investigation shows that harassment occurred, you should take the appropriate disciplinary action.
Federal law obligates employers to prevent or stop unlawful harassment. Harassment happens when behavior is unwelcome and based on a protected class such as race, gender, age, religion, national origin, or disability. It becomes unlawful when it is severe or pervasive enough to create a hostile work environment. In this case, since you’ve been made aware of alleged sexual harassment, failing to investigate the allegations could invite risk, especially if additional complaints are made against the same individual.
When an employer receives a harassment claim, they have a legal obligation to examine the claim by conducting a thorough investigation. This includes the following steps:
- Select an interviewer. Typically, this person would be an impartial manager, company officer, or HR representative. They should approach the investigation process without a presumption of guilt or innocence and with the commitment to treat the situation as fairly as possible. Typically, the investigation can and should be conducted and closed within three days.
- Speak with the employee who made the complaint (if you know who they are), the accused employee, and any witnesses they name. The questions asked during the interview should not lead an interviewee toward a particular response and should not be accusatory in nature. They should be unbiased, open-ended, and prepared in advance. It’s also important not to promise a particular outcome to employees participating in the investigation.
- Once the investigation interviews are complete, document your conclusions and actions taken. If the company determines that the accused employee did in fact violate its harassment or other workplace policy, appropriate disciplinary measures may be administered. What qualifies as appropriate would depend on the severity of behavior; it may include termination of employment. A summary of the findings should be placed in the accused employee’s file.
- Inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken. Remind both employees that you will not tolerate retaliation.
- In some situations, it is advisable to separate employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.
A racially insensitive comment could be considered harassment — and it would be unlawful harassment if putting up with such comments became a condition of continued employment (essentially, management was unwilling to put a stop to it) or if the conduct was severe or pervasive enough to create a work environment that a reasonable person would consider hostile.
Since you have a duty as an employer to stop unlawful harassment, we recommend that you investigate the alleged comment and, if you find evidence to support that your harassment or other conduct policies have been violated, discipline the employee who made it. Make sure that the punishment fits the crime. For instance, something that was, in fact, just insensitive may warrant a verbal warning, whereas calling someone by a racial slur may warrant a final warning or even termination, depending on the circumstances. Be sure to document your findings and any disciplinary actions taken.
Yes, we recommend you investigate. A company always has some inherent liability in relation to discriminatory or harassing comments or behavior. The level of liability usually correlates to the nature, severity, and context of the comments, the position of the employee who made them, and what the employer does or does not do about it.
Since you have knowledge of a potential situation, we recommend you investigate the matter and take appropriate disciplinary action if it turns out your anti-harassment policy was violated. As you conduct the investigation, document the discussions you have as well as your findings, and reassure those you interview that their participation will not result in retaliation.
Even if you’re not based in New York State or New York City, the new sexual harassment laws now beginning to take effect may apply to your organization. If an employer is located outside of New York and has employees working in New York, the regulation would apply to those employees working in the state of New York. The state and city have different provisions for employee communication and training along with various dates for compliance.
The state law applies to all employers, regardless of size, even if you only have one employee working in New York for one day. This includes remote employees who work from their homes. It also applies to all employees at out-of-state employers with New York State government contracts, even if no one steps foot in the state.
As a client, you have access to the New York Sexual Harassment Prevention Training that satisfies State and City Requirements.
