by: Jonathan K. Driggs
Receiving complaints of sexual harassment from employees can be a worrisome process. Most managers aren’t formerly trained on how to receive such complaints—yet the threat of lawsuits and other complications require that the process be handled correctly. Here are some tips for those who are in a position to receive initial complaints of sexual harassment from employees:
Don’t promise confidentially. Employees will often start out the complaint with a request (or even a demand) that the manager keep the matter confidential. However, because employer liability is often triggered by the employee’s complaint, this request simply cannot be granted. A good response can include a statement such as, “as a manager of the company, I simply cannot promise confidentiality—be assured, however, that the matter will be handled as discreetly as possible.”
Remind the employee about your non-retaliation policy. This will help to reduce employee stress. A statement like the following can be effective: “the company has a policy that strictly prohibits retaliating against employees who make complaints of harassment. I will monitor this situation very closely—as will our HR department—any concerns should be reported immediately.”
Be empathetic, but remain neutral. Complications can arise (including a greater chance of legal action) if the manager appears unwilling to listen to the employee’s concerns, or appears to be skeptical about the allegations. Listen carefully and respectfully to what the employee has to say. Focus on understanding the allegations, not on whether they are true or false. Resist the temptation to start “cross-examining” the employee at this stage of the process. On the other hand, be careful not to cross the line into becoming the employee’s advocate—you really don’t know what has actually happened at this point.
Get the facts. I’ve had more than one client over the years call me in a panic because an employee made a complaint of “sexual harassment”, only to call me back the next day saying, “false alarm–we asked a few more questions and discovered that it really isn’t a harassment complaint.” Employees will often use “alarm-ringing” terms such as “sexual harassment” and “hostile work environment” without fully understanding what those terms mean. When an employee uses a term like “sexual harassment”, ask him or her to describe the actual behavior that is causing the problem. You may have to ask several times to get enough detail. While the inquiry doesn’t have to be exhaustive at this point, getting enough information will allow you to get a sense for the nature and seriousness of the allegations (and help you to know whether or not you need to get help).
Don’t send the employee out to confront the accused. While most employers want to empower employees to resolve disputes on their own, sexual harassment situations typically require a different approach. Unless the employee truly wants to talk to the accused—and the allegations are quite mild in nature—I usually do not encourage such confrontations once a complaint is made. Furthermore, an employer may not require an employee to first confront the accused before conducting an investigation.
Discuss next steps. Thank the employee for bringing his or her concern to your attention. Inform the employee that you will immediately discuss the matter with the HR department (or other appropriate personnel). Be careful to not create the perception that the employee has control or oversight over the investigative process, or over the outcome of the investigation. Do, however, maintain appropriate contact with the employee during the investigative process to ensure that the employee knows that the matter is being handled, and that no retaliation is occurring.
This article should not be construed as legal advice.
Jonathan K. Driggs is an employment law attorney with over 18 years of experience, including 3 years with the Utah Labor Commission. www.jdriggslaw.com
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