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Sexual Harassment Investigation Tips That Lower Litigation Risk

Written exclusively for ChubbWorks

An online publication, Quartz, recently reported that dozens of female employees at Microsoft had accused the employer of sexual harassment and discrimination in an email chain. The women alleged that Microsoft's human resource department failed to address their reports of wrongdoing.

One woman said that she was "told to sit on a coworker's lap in front of a human resources leader." Another female Microsoft employee alleged that an employee of a partner company threatened to kill her unless she performed implied sex acts. When she immediately reported the harassment, which occurred on a work trip, to her male manager, he said that "it sounded like he was just flirting." When she reported it to HR, she was told they couldn't do anything because there was no evidence and the alleged perpetrator worked for another company.

Microsoft's head of human resources replied to the email chain, saying she vowed to do better. She encouraged anyone who had experienced harassment or discrimination to contact her directly. Suzanne Lucas "Did Microsoft HR Ignore Sexual Harassment and Discrimination Complaints?" inc.com (Apr. 09, 2019).

Commentary and Checklist

When a report of sexual harassment is made, no matter who the alleged harasser is, an employer must respond with an investigation. This is true even if the alleged harasser is a coworker, customer, client, donor, visitor,  vendor, or other third party participant in the workplace. If the accused works for another company, that company can be contacted about the matter.

An investigation will vary in length depending upon the allegations made. When sexual harassment is initially reported, quite often the victim will not tell the entire story. He or she will tell enough to get the employer's attention. That is why the investigator should interview the alleged victim first - to determine the facts of every instance of alleged harassment and to gather the documentation, in whatever form it exists. The investigator will determine if there are any witnesses and will interview them, too.

The accused will be interviewed last and will be given the chance to respond to each allegation. It could be the accused has additional documentation or names additional witnesses, which would require follow-up and perhaps another interview of the alleged victim or other witnesses.

If there is one incident only, this process will not be very time-consuming. If a pattern of pervasive sexual harassment that has been occurring over months or even years is at issue, the investigation will, of course, take considerably longer.

The mistake employers make is deciding on the spot that what is being reported either isn't true; isn't as "serious" as sexual harassment; is alleged against a favored person; or isn't worth the trouble of an investigation. This is a serious mistake for an employer and one that leaves it vulnerable to a lawsuit.

Train all managers and supervisors to transmit all reports to human resources immediately. Human resources personnel should be trained to arrange for a prompt, thorough, and objective investigation. Your policy should make it clear that failing to follow your procedures will lead to disciplinary action.

Employers should consider these additional investigation tips:
 

  • Consider using a third party to manage investigations, especially for high-risk matters or those in upper management positions.
  • Select a trained investigator. Make sure the investigator has the ability to be objective, calm, courteous, and professional.
  • The investigator should document all interviews and subsequent actions. Notes from all interviews should be recorded at the time or shortly after the interview and reviewed with the interviewee for accuracy.
  • Unless there is a reason why information cannot be shared, such as criminal conduct, be sure to communicate the final resolution to all those involved.
  • If you believe that an investigation was done poorly, appoint someone to review the investigation and, if necessary, perform a second investigation.
  • Do not let your investigators draw conclusions. Your investigators should be fact-finders. Allow another body to review the facts in the written investigation report and then to make a decision about an appropriate response.
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