By UpCounsel Employment Attorney Alexandria Andresen

1. Understand The Definition of “Harassment”

It is important to understand what entails “harassment” in the workplace. Harassment in the workplace is any type of inappropriate conduct that is based upon an individual’s protected class (depending on the state the employer is in, this can include but is not limited to race, color, creed, religion, sex, gender, gender identity, national origin, ancestry, age, handicap/disability, marital status, veteran’s status, citizenship status, sexual orientation, and genetic information) which has the purpose or effect of unreasonably interfering with an individual’s work performance, or otherwise creates an intimidating, hostile, or offensive work environment. Harassment can come in many forms, including communications orally, physically, virtually, or otherwise.

Upon receiving an employee complaint about harassment by a coworker, the employer has a legal duty to promptly investigate the complaint, take appropriate remedial action, and most importantly, ensure that the complaining employee feels comfortable in his or her working environment.

2. Have A Designated Recipient of Harassment Complaints

Once the employer understands what “harassment” is, the employer should ensure that it has a proper policy prohibiting workplace harassment that identifies one or more persons as designated recipients of complaints of harassment. The employer has the duty to ensure that the designated individuals are thoroughly trained on what harassment is and how to conduct investigations of harassment complaints.

3. Interview the Employee Making the Complaint

A designated recipient of harassment complaints should speak to the employee who made the complaint and interview the employee, preferably in person, which may better allow evaluation of the employee’s credibility. The interviewer should request the employee to provide specific information about the alleged harassment, such as date, time, and location of each alleged incident, the specific actions allegedly performed, and words used by the alleged harasser. The interviewer should pay careful attention to the context of the words and actions alleged because words and actions can have different meanings depending on circumstances in which they occur. The interviewer should request any evidence that supports the employee’s allegations of harassment, if any exists. At the end of the interview, the interviewer should prepare a written statement incorporating everything said by the employee. After preparing the written statement, the interviewer should request the employee review the statement, make any additions or changes, then sign and date the final statement.

4. Determine Whether the Employee Should Be Placed on Paid Leave

If the complaining employee has indicated that he or she feels uncomfortable in his or her working environment, then the employer has a duty to ensure that the employee feels comfortable in his or her working environment. The employer should make a business decision as to whether it can allow the complaining employee or alleged harasser to take paid administrative leave while the employer investigates the employee’s complaint. If the employer allows the complaining employee and alleged harasser to continue working in the same environment during the investigation, with knowledge that the complaining employee is uncomfortable in his or her work environment, the employer could face additional liability. It is important that the employer does not take any action against the complaining employee that could be seen as retaliation, such as placing the employee on unpaid leave, transferring the employee to a less desirable position or location, or any other type of employment action that would be seen as a detriment to the complaining employee.

5. Promptly Conduct an Investigation into Employee’s Harassment Claims

Commence the investigation as soon as possible into the employee’s complaint of harassment. The individual responsible for the investigation must have prior training, knowledge, and/or experience in conducting investigations of workplace harassment. The investigator or another employer representative should provide the complaining employee, as well as any potential witnesses, assurances that they will not be subject to any form of retaliatory action based on the complaint or cooperation with an investigation. The employer should further encourage such individuals to report to the investigator or other employer representative if they ever believe they have been retaliated against.

Thereafter, the investigator should review any notes, available evidence, and documentation related to the harassment complaint provided by the complaining employee. The investigator should then interview all potential witnesses identified by the complaining employee. The investigator should inform each interviewee of the importance of confidentiality during the investigation process, instructing each interviewee not to discuss the matter with anyone else, in the workplace or otherwise.

Typically, the investigator will confront the alleged harasser with the complaints brought against the alleged harasser, or with the facts underlying the allegations, and give the alleged harasser an opportunity to respond. Wherever possible, the complaining employee should not be required to discuss the allegations in the alleged harasser’s presence or to confront the alleged harasser face to face during the investigation. The investigator should determine throughout the interview process whether there are any additional potential witnesses that need to be interviewed; if so, the investigator should interview those individuals.

6. Prepare an Investigation Report

If the investigator determines that there are no further potential witnesses that need to be interviewed, then the investigator should prepare a written report detailing the responses of the complaining employee, alleged harasser, and all potential witnesses, as well as the evidence and documents that have been collected throughout the investigation. The report should detail the process the investigator followed in conducting the investigation, including the information obtained, names of witnesses interviewed, and what documents or other sources he or she reviewed or consulted. The report also should contain a summary of information obtained from each source; however, the report should not be a recitation of the investigator’s notes.

The investigator should include impressions of credibility of each interviewee and reference any other information that influenced such conclusions. Each conclusion reached by the investigator should affirm or reject each allegation raised by the complaining employee. The investigator may find that there is insufficient information available to either prove or refute the complaining employee’s allegations. Unless specifically requested, the report should not include any recommendations by the investigator as to what disciplinary action, if any, the employer should take against the harasser. While the investigator may provide suggestions, a senior manager responsible for discipline should make the ultimate decision.

The employer must keep the allegations and the details of the investigation confidential to the greatest extent possible and share the information only on a need-to-know basis, to protect all persons involved and the employer.

Once the investigator completes the investigation, issues the report, and senior management determines what action to take, it is important to advise both the complainant and the accused of the outcome of the investigation, but not all details of the investigation.

7. Take Appropriate Corrective Action

If the investigation concludes that there is reasonable cause to believe harassment occurred, the employer should impose disciplinary action on each appropriate party. Appropriate discipline should be reasonably calculated to ensure that the harassment does not continue or occur again. Forms of disciplinary action should include a written warning and other action, such as suspension, withholding of bonus or salary increase, denial of promotion or transfer, or any other action or combination of actions, up to and including termination from employment. If the employer finds that any supervisor or employee took any retaliatory action against any employee who raised a complaint or participated in a harassment complaint or investigation, that supervisor should be subject to severe disciplinary action.

8. Follow-Up With Complaining Employee

Following an investigation, it is important that the employer inform the complaining employee that his or her concerns have been investigated and appropriate action taken. The employer should make further efforts to avoid additional potential incidents of harassment. The employer should instruct the complaining employee to bring to the attention of the designated complaint recipient any future recurrences of harassment by the alleged harasser or any other employee of, or other persons involved with, the employer. The employer should also continue to adhere to its anti-harassment policies, ensure that its managers are continuing to receive updated training on workplace harassment, and monitor any potential occurrences of harassment to avoid similar complaints in the future.

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About the author

Alexandria Andresen

Alexandria Andresen

Corporate attorney focusing on labor and employment law, with experience in transactional matters and litigation. Proven to be trusted counsel, always seeking to protect the best interests of my clients.

Experience includes: multiple successful demand letters written on behalf of clients to protect their rights, filing of trademarks and copyrights, securing a temporary restraining order and preliminary injunction against a client’s ex-business partner who was unlawfully taking client’s assets, formation of multiple businesses (LLCs, S-Corps, C-Corps), protected client’s business from unemployment insurance claims through appeal, and preventing enforcement of unlawful noncompete agreements.

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