What to do when and employee makes a complaint.

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What do you do next...when your employee makes a complaint?
What is sexual harassment?
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What do you do next...when your employee makes a complaint.

By Rachel Nelson, Contributing Editor
Smart Workplace Practices

A female employee comes to you with the complaint that a male employee has been "coming on" to her and "bugging her" to go out with him. What do you do?

Tell her it's probably no big deal. Wrong.

Tell her it's a normal thing for a guy to pay attention to her at work...she's very attractive - she should be flattered. Wrong.

Give her a copy of your sexual harassment policy, get some more specific information from her on what's been happening, for how long, and if anyone else has witnessed it, and tell her you'll investigate the matter. Then investigate the complaint. Now you're on the right track.

If you want to avoid a sexual harassment lawsuit you must take all complaints seriously and investigate them promptly in a professional, nonjudgmental manner, advises Frances Lynch, a trial court judge in Tucson, AZ and expert on sexual harassment issues.

Lynch says it's important to get started on a sexual harassment investigation right away...within two or three days. "If there's litigation later," says Lynch, "it will be to your advantage to show you acted right away."

"Documentation is key," says Lynch. You can't prove you did anything unless you have good documentation. Lynch recommends using a complaint form like the sample forms in her book Draw the Line, A Sexual Harassment-free Workplace (Oasis Press, 800-228-2275. $17.95 + $5 S&H.)

"Even a memo should not just be off the cuff," says Lynch. "Make your documentation well thought out. And don't make any flip judgments."

Lynch says you may want to use an outside law firm or mediation service for an investigation - particularly when a hostile environment claim is being made. It may be an expense, but cheaper than a lawsuit, points out Lynch.

A less expensive solution, suggests Lynch, may be to agree with other small employers to investigate for one another. This gets away from claims of employer bias.

If you do your own investigation, where do you begin?

First of all, be sure to show sensitivity toward both the complainant and the accused - the allegations could be either true or false. Keep all meetings discreet. Gossip isn't good for morale, and nobody wants to be branded as a squealer.

You need to have written policies regarding your stand against harassment in your workplace, your internal reporting procedures for complaints, and disciplinary actions which may be taken. Then follow them carefully and document every step.

What is sexual harassment?

To be able to effectively investigate a sexual harassment situation, you should have a clear understanding of its definition.

Sexual harassment is unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964. Here's what you're looking for in a sexual harassment investigation:

Harassment directed at only one gender. (Unless the harasser is bisexual.)
Conduct that is sexual in nature (sexual advances, requests for sex, sexually explicit language).
Sexual conduct that is unwelcomed by the victim.
Harassment that changes or threatens to change terms or conditions of victim's employment.
Interference with victim's job performance...hostile or intimidating work atmosphere.

If you conduct the investigation yourself, tape record the sessions or have another person present at the interviews, suggests Lynch. She adds that you may want both a male and female member in a sexual harassment fact-finding investigation team.

When you conduct your investigatory interviews, remain calm and unhurried...keep to the subject, even if the interviewee tries to change it. Also, remember that a union employee may be entitled to union representation when interviewed.

Beginning with the complainant, ask the basic questions of who did what to whom, when, where, how and why? Probe into the frequency of the occurrence, and get specific answers to what was said or done, and where it occurred. Try to determine the effect of the behavior on the complainant.

Inform the accused of the allegations and allow the accused an opportunity to respond to each one. Document any allegations that are denied. Ask if the accused has any idea why the charging party would say such things. (Do the two parties know each other socially...? Has there ever been a consensual relationship between the two in the past...?)

Also document the position held in the organization by the accused, and if the accused had any control over employment decisions affecting the charging party.

Circumstances will determine if witnesses should be brought in. Remember that people who have been told about incidents can also be considered witness, even if they didn't actually see the prohibited conduct.

Assure each witness their testimony is confidential, and that they will not be retaliated against for testifying. Also caution the complainant, accused and witnesses that they need to keep discussions strictly confidential. Back up your instructions with warnings of discipline if necessary.

Be careful not to "distribute allegations" in talking to witnesses. For example, instead of asking, "Did you see Bill touch Linda's back?" ask, "Have you seen anyone touch Linda at work in a way which would make her uncomfortable?"

"As an added safeguard, always do an exit interview with anyone leaving your employment," suggest Lynch. Ask if there was any problem with harassment, and document their response. It isn't unusual for someone to quit and then later come back at you with a charge of sexual harassment, says Lynch.

Smart Workplace Practice: Do NOT ignore complaints, even from chronic complainers. Have an investigation procedure and use it.

Give your supervisor tools, training to protect against sexual harassment, other employee-connected headaches

Give you supervisors and managers the skills and tools to protect themselves and your organization from sexual harassment lawsuits and other employee-related problems and lawsuits. Result: Less risk to your organization. Less stress for you and for your supervisors. You increase your protection by reducing the chances that supervisors' mistakes and misstatements could lead to sexual harassment and other legal actions.

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