I often receive urgent telephone calls from business owners and managers who have been confronted with allegations of co-worker harassment. Just the word "harassment" fuels fear and frustration for everyone involved: the employee is certain they are enduring unfair or even unlawful working conditions, while the owner/manager, often in the dark about the specific concerns, pictures a long, contentious battle in the courts of law and public opinion.
Harassment claims can lead to litigation and negative press, but more often than not, that can be avoided by responding appropriately to the employee and adequately addressing the concern. Often the conduct being complained of, while problematic from the employee's perspective, does not constitute unlawful harassment, as defined by state and federal law. This does not mean that the issue should be ignored, but it may affect how formally the employer must respond.
With that in mind, here are some guidelines to consider when faced with a complaint:
- Refer to your written harassment policy.
An effective harassment policy should clearly outline the procedure for dealing with harassment concerns. It should also include a commitment from the employer to:< >Protect confidentiality to the extent possible under the circumstances, without promising absolute confidentiality.Take prompt and effective remedial action if the employer determines that harassment has, or may have, occurred.Protect employees with honest concerns from retaliation.
- Provide a safe and receptive intake environment to the complaining employee.
Employees are often reluctant to raise harassment concerns to their managers for a variety of reasons, so when they do and then their complaint is handled inappropriately, employees can begin to lose faith in the system and eventually stop notifying management of any concerns – an even greater problem for the employer in the long run. Managers can prevent this from happening by providing a safe, confidential, and compassionate environment where employees can express concerns to an appropriate representative such as an on-site human resources representative, an executive team member, or an independent human resources consultant. The representative should not be the employee's direct supervisor if there is any indication that the complaint involves favoritism or bias on the part of the supervisor.
- Conduct a proper investigation.
There is no "one size fits all" approach to investigations. Each one must be tailored to suit the particular allegations. The key is to make sure that it is prompt and as thorough as warranted under the circumstances. Some investigations may be conducted by someone within the company, like a manager or human resource professional with investigations training or experience. Other times, it may be best to engage a third party investigator or qualified attorney to investigate the complaint.
In all cases, be sure to consider how best to protect the complaining employee from further harassing behavior or retaliation while the investigation is under way. This might mean separating the employee from the offending co-worker, or placing the alleged offender on leave pending the outcome of the investigation.
- Take appropriate remedial action and avoid even the appearance of retaliation.
If the employee's complaint is found to have merit, take prompt, appropriate disciplinary action. While discharging an offender is often the simplest way to prevent and deter future acts of harassment, there are other measures available that should be considered. Examples include: (a) transfer or demotion; (b) final warning or last chance agreement; or (c) suspension without pay. Whatever action is taken must reasonably ensure that harassment will not continue or reoccur. It should also be well documented.
One final note of caution: Be exceedingly cautious about disciplining or terminating a complaining employee, whether the complaint was substantiated or not. Even if such action is justified, when it occurs close in time to a legitimate complaint, it can appear to be retaliatory and provide fodder for a formal dispute.
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