Harassment

EMPLOYMENT ALERT

RESPONDING TO CLAIMS OF HARASSMENT

By Karen A. Khan, Esq.

Do you believe that you are being harassed or sexually harassed at work? Does your employer have a written anti-harassment policy? A complaint procedure for employees to complain of harassment? Yes? Then complain to management or to HR. No? Complain anyway. By now, most employers have such policies and procedures in place. But, employers often forget that they are required to investigate complaints promptly and then take appropriate corrective measures to stop the harassment. If you have complained of harassment, sexual or otherwise, here's what you should expect of your employer.

First, you should expect that your employer has and continues to conduct regular training of all employees, supervisors and managers on behavior that could be viewed as harassment. Those training sessions should include clear procedures for identifying and reporting harassment.

Second, your employer should appoint an investigator who will conduct all necessary interviews of witnesses. The investigator should have a clear understanding of the company's policies and should be objective, fair and impartial during the investigation.

Third, the complaining employee should be interviewed, in detail, and the investigator should assure and request confidentiality as much as possible. The investigator should also reiterate your employer's policy of prohibiting retaliation against employees who complain of harassment. During the interview, witnesses to the incident(s) should be identified and the investigator should separately interview each witness, giving the same assurances of confidentiality and no retaliation previously given to the complaining employee.

Fourth, the accused must be interviewed. Each and every accusation must be presented and responded to by the accused. If the accused employee has identified any witnesses to support his or her side of the story, they too should be interviewed.

Once all interviews have been conducted, and any relevant documents reviewed, the investigator must make a determination as to whether the complainant was harassed. This determination usually takes the form of a detailed written report, the significance of which cannot be understated. If the complaining employee decides to sue, and there is no written report, imagine what a nightmare your employer could have. Memories fade, witnesses may say something different and more damaging in Court than what they told the investigator, and the investigator may not have a clear memory of what transpired during the interviews. In four words - disaster for the employer!

Finally, appropriate action must be taken depending on the facts and outcome of the investigation. But 'appropriate action' doesn't necessarily mean termination of the accused. For instance, if there has been no finding of harassment, but the investigation uncovered some inappropriate conduct, then perhaps sensitivity training and a reiteration of the company's policies would be sufficient. Should there be a finding of harassment, however, the employer should take into consideration all available disciplinary measures, including termination, and issue that which will be most effective in ending the harassment. Both the complaining employee and the accused should be informed of the outcome of the investigation in writing.

I have used the word "should" in this article for a reason. What your employer "should" do is not always what they really do. But it is what every employee who believes they have been harassed should expect.

The contents of this Employment Alert are intended for informational purposes only and must not be considered as legal advice.

Karen A. Khan is a local attorney and litigator representing employers and employees in all areas of employment law who has represented both large corporations and individual employees alike in employment discrimination matters, and who has conducted litigation nationwide.

The Khan Law Group, PLLC is a Washington, D.C. based employment law firm representing corporate clients as well as individual employees with employment issues in Washington DC, Maryland, Virginia, and nationwide. The Group is dedicated to providing the highest calibre of personalized legal services and representation.

Contact The Khan Law Group, PLLC at 202-290-1670, for a confidential consultation.