TOP TIP: Preparing for and Responding to Harassment Claims – A Roadmap

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As discussed above in McKinney v. G4S Government Solutions Inc., an employer’s preparation for and response to an employee’s harassment complaint can make all the difference when addressing employee concerns and in defending against a claim if litigation ensues. The actions of the employer in that case provide a good roadmap (with a few editorial additions) for others.

Develop and implement a harassment policy with multiple avenues of complaint – managers, supervisors and Human Resources.

  • Train supervisors and managers on the policy and on the employer’s obligations under anti-discrimination and anti-harassment laws generally.
  • Ensure that supervisors and managers report any complaints of harassment that they receive immediately to Human Resources (or top management, if there is no HR), regardless of whether or not they believe there is merit to the complaint.
  • Meet with the complainant promptly to assure him/her that the company prohibits harassment and prohibits retaliation for bringing complaints, to obtain details about the concerns, and to inform the complainant that any new or additional concerns should be reported immediately.
  • Conduct an immediate investigation into the complaint, including speaking with the alleged harasser(s) and any possible witnesses. It may be wise to consult with outside employment counsel at this point, to ensure that the investigation is appropriately structured and executed.
  • Remember that you can request but not require interviewees to keep the matter confidential.
  • Warn the alleged harasser(s) not to retaliate against the complainant. Consider separating the harasser(s) and complainant for (at least) the duration of the investigation.
  • Make a determination as to whether or not the alleged conduct occurred and whether it constitutes harassment. Then take action that is proportional to the determination.
  • Follow up with the complainant regarding the results of the investigation and any actions taken (although specifics about any disciplinary action should not be shared – you can say the harasser “has been counseled” or “has been disciplined”). Reiterate that retaliation is prohibited, and that any concerns should be immediately reported.
  • Continue to check in with the complainant periodically to make sure that there are no further issues.