What is the employer’s responsibility when a complaint of Harassment occurs?
In the event that a harassment complaint occurs at your workplace, as an employer, you are obligated by federal and state laws to take prompt and effective action once an allegation of harassment has been filed with your HR department or designated intermediary. As an employer, you are automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, or loss of wages. If the supervisor’s harassment results in a hostile work environment, as an employer you can avoid liability only if you can prove that:
1) You reasonably tried to prevent and promptly correct the harassing behavior.
2) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by non-supervisory employees or non-employees over whom the employer has control (e.g., independent contractors or customers on the premises), if employer knew, or should have known about the harassment and failed to take prompt and appropriate corrective action. Due to this, you shouldn’t limit your policies or workplace training to harassment by employees against other employees, but you should also cover harassment by non-employees.
As an employer, you also need to know how to handle complaints if and when they occur. The most important part of handling complaints is to make sure that allegations of harassment are addressed quickly and that actions are taken to stop the alleged harassment. So, what happens if you receive a complaint regarding harassment at your business? This one may sound like a no brainer, but if an employee lodges a complaint of harassment-make sure that as the employer, you are listening attentively to the complaint. This action reaps two benefits:
1) Being an active listener can help you in gathering significant details and will help you approach the investigation in an intelligent manner.
2) The employer’s relationship with the employee can be improved. Remember, an employee who feels listened to and taken seriously will be more likely to see you as their ally instead of foe.
The next step to reducing the legal and practical risks once you have received a complaint is taking the complaint seriously and conducting a thorough investigation. Your ultimate objective is to ensure that the alleged harasser is not able to participle in further harassment or retaliation against the complaining employee. Some common preventative methods include:
1) Revising work tasks or responsibilities such that the complaining employee is no longer working with or being directly supervised by the alleged harasser or if possible.
2) Changing work schedules so that the complaining employee and the alleged harasser no longer work together and have a decreased likelihood of seeing one another.
While investigating the complaint, make sure you are being fair and do not allow retaliation. Maintain careful notes throughout the investigation process and document any interview with employees or witnesses to the harassment. It is critical that those involved with the investigation are made aware that information will be kept confidential, disclosed on a need to know basis, that all parties will need to maintain confidentiality, and retaliation towards someone for their participation should not occur and will not be tolerated. Depending on the severity of the harassment complaints this might also be the time to consult with an attorney to ensure that you are examining the situation fairly and give a second opinion.
Additionally, while you may not have an established HR department, especially if you are a smaller business, it is critical that you have a designated member of the leadership team that handles harassment complaints and concerns. In general, prevention is an effective deterrent to harassment. It may be necessary to review your employee handbook, codes of conduct as well as provide additional harassment training to your staff.