Four Things to Avoid in a Harassment Investigation

At an employer’s response to a harassment complaint doesn’t need to be perfect. Just ok may do.

That’s because an employer that learns about sexual harassment needs to respond in a way that is reasonably designed to end the complained-of behavior.

In a recent federal court decision, the U.S. Equal Employment Opportunity Commission alleged that an employer’s response to complaints of sexual harassment in September and December 2019 was deficient in at least four ways.

First, don’t follow the anti-harassment policy.

The employer had a policy that required managers to report harassment complaints to Employee Relations immediately. The victim complained to her manager about sexual harassment in September 2019. However, the manager did not communicate the complaint to Employee Relations, and the employer consequently took no action in response to her complaint.

That seems unreasonable.

Second, conduct shoddy interviews.

The employer did begin investigating the December 2019 complaint quickly.

That’s the good news.

However, the evidence showed it “was not targeted to identify harassers or specific harassing conduct.” Specifically, records indicated that the investigator did not interview every person named in the victim’s complaints, may not have asked for specifics when several individuals confirmed that sexually explicit behavior and language were pervasive at the facility, and focused primarily on just one alleged incident of harassment.

That seems unreasonable, too.

Third, wait too long to train employees.

In February 2020, the employer mandated sexual harassment training for all employees at the victim’s location but failed to carry out this training promptly.

How long did it wait? Three years after the investigation ended.

The company blamed it on the pandemic. However, the investigation concluded at least a month before the outbreak of the COVID-19 pandemic, and the employer could and regularly did conduct computer-based harassment training even before the pandemic.

Unreasonable? Maybe so.

Fourth, discipline ineffectively.

The disciplinary action the employer allegedly took against three employees was partially ineffective because one of the employees whom the employer supposedly disciplined testified that he had never been notified that he was subject to discipline.

Come on, man!

As with the other proffered evidence, a reasonable jury could find that the employer’s failure to notify an employee that he was being disciplined in connection with the victim’s harassment allegations did not result in prompt remedial action.

If you want my two cents, leave investigations to the professionals. But here are some tips from the EEOC on how to address complaints of harassment.