Under the EEOC Guidelines, "prevention is the best tool for elimination of sexual harassment. Employers should: (I) affirmatively raise the subject; (ii) express strong disapproval; (iii) develop appropriate sanctions; (iv) inform employees of their right to raise and how to raise the issue of harassment under Title VII; and (v) develop methods to sensitize all concerned." See generally - EEOC Policy Guidance No. N-915-050, "Current Issues On Sexual Harassment," March 19, 1990.
The personal nature of sexual harassment complaints is such that great care must be taken to handle such complaints in an evenhanded, sympathetic manner. For example, assurances of confidentiality (consistent with the rights of the alleged harasser and other considerations) and the ability to present one's complaint to a member of the same sex should be considered as part of the employers investigation procedure.
1. HAVE A POLICY PROHIBITING SEXUAL HARASSMENT
Many courts have held that an employer may negate liability or diminish damages for sexual harassment by its employees in a hostile work environment claim by taking immediate corrective action when it first learns of any illegal harassment. Therefore, employers must adopt a written policy against harassment. An employer should also tell its supervisors that harassment is illegal and will not be tolerated, and publicize to all employees its grievance procedures. These policies should condemn all forms of harassment in the workplace and specifically note what conduct is prohibited. It is important to state that there will be severe repercussions for anyone found to be engaging in sexual harassment.
The employers anti-harassment policy should encourage an employee who has been the victim of harassment to notify his or her supervisor or the personnel manager. The policy should also inform the employee who to notify when the harassing party is the immediate supervisor. As a practical matter, the policy may allow the victim of harassment to report sexual harassment to any supervisor or manager, so that the victim can bring the complaint to any person in management that s/he feels comfortable with. The policy should publicize the employers grievance procedures for handling complaints. The importance of maintaining a specific and well-publicized anti-harassment policy is reflected by the Supreme Court's statement in Meritor Savings Bank, that the employers claim that it should be insulated from liability because the employee failed to invoke the grievance procedure would be "substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward."
2. PROMPTLY INVESTIGATE CLAIMS OF SEXUAL HARASSMENT
Do not put off the investigation simply because you want the headache to go away. It is imperative that investigation of a sexual harassment complaint be commenced, investigated and resolved as soon as possible after the complaint has been received. This is very important in the employers defense of such claims and enables the investigator(s) to obtain information from the parties (including witnesses) while it is still fresh in their minds. Promptness also lets employees know that the employer takes the complaint seriously. Finally, the sooner a complaint is investigated and resolved, the sooner the inappropriate behavior (if any) can be corrected.
Investigators. It is important that the investigator(s) should be perceived by all parties involved as fair, honest and unbiased. The complaint can be investigated in-house by management, or by legal counsel. It is suggested that a team of two people be given responsibility for investigating a sexual harassment complaint, so that they may balance each other and corroborate the investigation.
It is imperative that each action taken in investigating a sexual harassment complaint be carefully and thoroughly documented. The basis for any conclusions reached and disciplinary action taken should also be clearly recorded. It may be advisable to consult legal counsel early on in the process.
3. GATHER INFORMATION RELATING TO THE COMPLAINT
After interviewing the victim and the alleged harasser, any witnesses they identify should be promptly interviewed. If no witnesses have been identified, an employer should meet with employees that work with the accused harasser and determine whether any similar acts of objectionable conduct have occurred. Additionally, the personnel records of the parties involved, as well as any other relevant documentation, should be reviewed. Such information may assist the investigating team in assessing the credibility of the parties, as well as making a determination of the severity of the conduct and the appropriate measures to be taken. At all times during this process, an employer should be aware that it needs to be thorough and to complete its investigation as quickly possible.
4. RESOLVE THE COMPLAINT AS SOON AS PRACTICABLE
Once a complete investigation of the alleged improper conduct has been completed, the employer must determine the nature and severity of the conduct in question before it can decide the appropriate action to be taken in response to the complaint. The employer may greatly decrease its potential liability on a sexual harassment claim by the promptness, thoroughness and reasonableness of its evaluation of the evidence it has gathered. Accordingly, it is critical that the employer document the decision it reaches and the action it takes.
If the complaint is corroborated, the investigation is complete and the harasser should be disciplined. The employer must take swift and appropriate disciplinary action against the harasser. The range of appropriate discipline, depending upon the circumstances, could be as light as a written warning or as heavy as termination.
If a decision is made to separate the harasser and the victim through a transfer, the harasser, and not the victim, should be transferred. If this is not possible, the victim should only be transferred if he or she is willing to sign a written statement that she voluntarily agrees to the transfer. The damages of the victim may be greatly increased if the parties are not separated. Care must be taken that the party who is relocated does not suffer loss of job benefits or other damage.
If the complaint is not proven, its not appropriate to discipline either party; however, the employer may wish to explain its reasoning to both the complainant and the alleged harasser. The employer may also want to inform the alleged harasser that any subsequent complaints will be fully investigated and, if proven, s/he will be terminated. This warning should be documented and placed in a confidential investigation file with all other written documents regarding the investigation and complaint.
5. TAKE APPROPRIATE DISCIPLINARY ACTION
The type and severity of disciplinary action will depend on the past employment history of the harasser, as well as the severity of the sexual harassment complained of in this instance. If the harasser has an exemplary record and the harassment is inadvertent or relatively minor in nature (e.g. "you've got great legs"), a simple written reprimand may suffice. Ongoing or more severe acts of sexual harassment may lead to dismissal. The level of disciplinary action necessary to prevent an employer from liability for claims of harassment was recently addressed by the Ninth Circuit. In Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992), the court held that verbal warnings and counseling were not a sufficient response to continuing sexual harassment of a Veterans Administration employee by a coworker. The court stated that although an oral warning may be a "very effective" first step, "if the harassment continues . . . the employer must impose more severe measures in order to ensure that the behavior terminates." The court further stated that the extent of the discipline depends upon the seriousness of the conduct. Employers must insure that the corrective action they take is effective.
6. FOLLOW-UP WITH THE VICTIM
Finally, the employer should affirmatively follow up with the victim to determine (a) whether the inappropriate activity has stopped, and (b) whether any retaliatory or related activity has been initiated against the complainant or any witnesses or other involved parties. It would be appropriate for the person to whom the victim made the complaint, to ask the victim about this (e.g. one month after the resolution of the complaint, then again at six months). Depending on the situation, it may also be advisable to interview coworkers or supervisors of the harasser in order to ascertain whether inappropriate activity has continued with respect to the original victim or other parties. Be sure to also document this follow up activity.