If an employer receives a complaint of sexual harassment or has reason to suspect that harassment is occurring, that employer should investigate, in good faith, whether harassment is actually going on. Strictly speaking, no statute requires that sexual harassment in the workplace be investigated, but depending on the circumstances, a good-faith investigation may result in a favorable verdict for the employer.
However, if an employee filed a lawsuit against an employer claiming sexual harassment with evidence to support that claim, but the employer admits that it ignored a prior internal sexual harassment complaint, took no action, or botched an investigation, it would probably result in a decision for the plaintiff.
What Is Sexual Harassment?
Harassment of an employee because of his or her sex is illegal under Title VII. Harassment includes, but is not limited to, the following actions:
- unwelcome sexual advances,
- requests for sexual favors,
- verbal or physical harassment that may or may not be of a sexual nature, and
- offensive remarks about a person’s sex or about people of a particular sex in general.
It does not matter which sex the harasser or the victim is or even if they’re of the same sex. The harasser could be the victim’s supervisor, a supervisor from another area, a co-worker, a contractor, or a client or customer.
Why Should an Employer Investigate Sexual Harassment?
The U.S. Supreme Court has stated that an employer will help itself in avoiding liability or limiting damages by performing a full, good-faith, independent investigation when an internal sexual harassment complaint is filed or when the employer becomes aware that harassment may be going on.
In two 1998 cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court stated that employers can be held liable for unlawful harassment by supervisors. This finding is based on the principles that an employer is responsible for the acts of its supervisors, employers should prevent harassment in the workplace, and employees should act to avoid or limit the harm from harassment.
- To reach these goals, the Court ruled that an employer is always responsible for a supervisor’s harassment if it results in a tangible employment action (such as a firing, demotion, or cut in pay). If there is no such tangible action, the employer might escape liability or limit damages owed to the plaintiff by establishing an affirmative defense. That defense requires proving that the employer used reasonable care to prevent and correct harassing behavior and that the employee unreasonably failed to use preventive or corrective opportunities provided by the employer through the investigation process or to otherwise avoid harm.
In a more recent case, Vance v. Ball State University, the Court applied the same concept in a situation where sexual harassment was committed by a nonsupervisor. The Court ruled that the employer was still liable for hostile work environment harassment by co-workers who are not supervisors if the employer was “negligent in failing to prevent harassment from taking place.” When determining whether the employer was negligent, a court assesses two things:
- the nature and degree of authority the harasser had over the victim, and
- evidence that the employer failed to monitor the workplace, respond to complaints, or provide a system for registering complaints or in other ways effectively discouraged complaints from being filed.
How Should an Investigation Be Conducted?
Normally, someone in human resources investigates these complaints. The employer should designate this person to investigate complaints and train him or her how to conduct investigations. The investigator must not be accused of playing some role in the harassment or subsequent retaliation.
Often, larger employers may hire an outside consultant or law firm to investigate sexual harassment claims. The investigator should have a working knowledge of the company’s policies and equal employment opportunity obligations and should be impartial, objective, and fair during the investigation. It may be easier for the victim to talk with an investigator of the same sex, but same-sex investigators are not required.
After an internal complaint has been filed, the employer may ask the employee for a full account of the facts and circumstances underlying the complaint. Ideally, the employer should provide a written harassment complaint form to the employee. With or without a form, the following information should be collected:
- the date of the incident(s),
- the locations of the incident(s),
- the names of any employees involved,
- the names of any witnesses,
- what occurred and/or what was said by whom, and
- any additional comments or information.
The employee will probably be asked to sign and date the statement or form. If the situation isn’t resolved in-house and litigation results, this form will be critical. It needs to be filled out as completely and as honestly as possible. If you state things on the form that turn out to be untrue, it will harm your credibility, which can be fatal in a “he said, she said” sexual harassment case.
An investigation should be thorough, involving a review of any relevant documents or communications and interviews of parties and witnesses. Ideally, the person doing the investigation will be impartial, have an open mind, and not be afraid to ask difficult questions of those in authority. A good-faith, honest decision about the situation should be made, with the results of the investigation and its findings well-documented.
If this kind of investigation takes place and finds no evidence of harassment, then the employer will have an easier time in court. If, on the other hand, there is evidence of harassment, the employer should take effective steps to prevent it from happening again. There should be appropriate discipline issued, up to and including termination, for the harasser’s actions. Finally, if the investigation is incomplete, biased, or one where the investigator just “goes through the motions” to protect the harasser while “digging up dirt” on the harassment victim for disciplinary actions and retaliation, hopefully a judge or jury will be able to see through this. In that case, a court could give the investigation no weight or potentially hold it against the defendant.
Summing It Up
Your sexual harassment complaint should be investigated, as should unreported sexual harassment that management itself learns about.
- If an investigation is done right, the facts will become known, and you and your employer can reach an outcome that benefits both of you.
- If it’s not done right, it will only make the employer look worse if the case is eventually litigated.
If you’ve been sexually harassed and are thinking about filing an internal complaint, or if you have already done so, please contact our office. We can discuss your legal rights and protections and explain how the law may be applied in your situation and what we can do to help.