Risk Managers' Forum

Responding to reports of sexual harassment

Advice for agencies to use in their own offices and to share with clients

By Steve Carter, JD, CSRM, ARM, CRM

(This is the second article of a three-part series on sexual harassment. The first article, “Preventing Sexual Harassment in the Workplace,” appeared in the August 2008 issue of Rough Notes.)

Even in the most proactive organizations—those with sound sexual harassment policies, procedures, and training programs—complaints of sexual harassment will inevitably arise. When they do, it is important to conduct a prompt and thorough investigation.

In the short run, it promotes an organization’s commitment to fostering a welcoming and respectful work environment and reinforces the importance of its sexual harassment policy. In the long run, a thorough and prompt investigation can avoid potentially embarrassing, costly, and time-consuming litigation. This article explores some of the commonly asked questions that arise when sexual harassment complaints are made.

Should all complaints be investigated?

When first made, a sexual harassment complaint may seem trivial or frivolous. The supervisor or manager who first receives the complaint may conclude that the underlying conduct in the complaint is not sexually offensive or harassing and, therefore, does not warrant an investigation. Nevertheless, every complaint must be taken seriously and investigated to determine if the conduct meets a two-prong test for sexual harassment.

The first prong asks, “Would a reasonable person in the complainant’s situation have been sexually offended by what occurred?” This is an objective inquiry that essentially asks whether the conduct violates generally accepted social norms. Only an investigation that develops all of the facts surrounding a complaint can provide a basis for answering this key question.

The second prong asks, “Was this specific complainant actually offended by what occurred?” This is a subjective inquiry that asks whether the complainant was genuinely offended or simply feigning offense for other reasons. Again, only a thorough investigation can provide a basis for answering this question.

Off-handedly dismissing a complaint as trivial or frivolous and failing to investigate may expose the organization to substantial vicarious liability.

Should “anonymous” complaints be investigated?

To answer this question, it important to understand that sexual harassment complaints—both “quid pro quo” (related to bribery or blackmail) and “hostile environment”—can be categorized as “full-fledged,” “FYI,” or “anonymous.”

“Full-fledged” complaints are typically made by employees who believe they or someone else in the workforce has been harassed. These employees want action taken to curtail the harassment and are willing to cooperate with the organization by providing detailed information as to what occurred.

“For Your Information (FYI)” complaints are similar to full-fledged complaints—with two major exceptions. The FYI complainants are not seeking redress and are not willing to cooperate. The FYI complainants usually seek out a supervisor as a confidant for the sole purpose of proverbially “getting it off their chests.” Supervisors in these situations must realize that they cannot be the complainant’s confidant, but they are representatives of the organization with paramount legal and ethical responsibilities to investigate all allegations of sexual harassment.

Supervisors who receive FYI complaints should advise the complainants that they cannot keep the information in confidence. Additionally, supervisors must realize that their obligation to the organization is not discharged if the employee states something to the effect, “Well, let’s forget what I just told you!” Like toothpaste, a sexual harassment complaint, once disclosed to management, cannot be squeezed back into the tube.

“Anonymous” complaints may mysteriously appear in supervisors’ in-boxes, be phoned in to an employee help or hot line, or surface in the human resources’, risk management’s or ombudsman’s (investigator’s) office mail. These anonymous complaints are submitted by unidentified individuals, perhaps not even employees. The complaints may provide detailed or only sketchy information about alleged harassment in the organization. They may be submitted by a crank or by someone with a legitimate complaint.

The “FYI” and “anonymous” complaints may provide only scant information on which to begin an investigation. Nevertheless, like the full-fledged complaints, they must all be taken seriously and diligently investigated.

How should complaints be evaluated?

Allegations of sexual harassment can lie anywhere along a wide spectrum of unacceptable conduct. Before appointing an investigator or team of investigators, a preliminary evaluation should be made to determine where on the spectrum each allegation seems to fall.

At the near end of the spectrum, sexually harassing conduct is usually only visually or auditorily offensive. Jokes and comments made and overheard around the water cooler, teasing, cartoons posted on the bulletin boards, and sexually provocative calendars or screen savers are typical examples. At this end of the spectrum, the behavior may not be directed toward a specific individual or group, may not have been intended to offend, and is usually non-criminal in nature. To warrant more than just an on-the-spot reprimand, actionable sexual harassment conduct at this near end of the spectrum must generally be repetitive.

In the middle of the spectrum, offensive conduct also includes patently offensive physical contact, conduct directed at a specific person or group, and intentional conduct. Examples include: suggestive comments about a co-worker’s appearance or dress; using insulting or demeaning nicknames; repetitive and unsuccessful requests for dates; or unwelcome touching (e.g., hugs, shoulder massages, patting, nudging and brushings). These are illustrations of unacceptable conduct that may now include minor criminal conduct (stalking, simple batteries, etc.). Some conduct in the middle range may be actionable only if repetitive; some actionable at the first occurrence.

The extreme end of the spectrum consists of egregious conduct that is principally physical in nature, mean-spirited, and probably criminal. As defined in an applicable criminal code, this conduct may consist of aggravated assaults and batteries, lewd acts, indecent assaults, and sexual assaults including rape. The conduct need not be repetitive. A single incident can constitute actionable sexual harassment.

Who should investigate?

After analyzing where the allegations fall on the spectrum and the anticipated complexity of the investigation, an investigator or team with the necessary qualifications can be appointed. For a single allegation at the near end of the spectrum, a supervisor might be appropriate. Farther along the spectrum an investigator might be appointed from upper management, perhaps from the human resources, risk management or compliance office. At the extreme end, the organization may be well advised to retain an outside investigator, possibly an attorney or law firm with significant experience in employment law.

No matter who is appointed to investigate, it is prudent at any stage of the investigation to consult with in-house or outside legal counsel for advice and to periodically update counsel as the investigation progresses.

In addition to the seriousness and complexity of the complaint, gender, age, and background may also be relevant factors in selecting an investigator. Understanding how emotionally charged the environment can be, especially in the early stages of an investigation, an organization should not be surprised if a complainant may be more comfortable talking to someone who is a male or a female, one who is closer in age or older, or one who shares a similar or different background. Appointing several diverse members to a team may be wise if these or similar issues are likely to arise. No matter who is appointed to investigate, however, care should be taken to ensure that no investigator has any actual or perceived conflict of interest, bias, or personal stake in the outcome of the investigation.

For serious and complex investigations, appointing several individuals to a team may be the best course of action.

Conclusion

No two sexual harassment investigations are alike. Every investigation is unique and presents unusual challenges to the organization. This article responds to some of the commonly asked questions about sexual harassment investigations. We will conclude this series in our next column where we will discuss interviewing techniques for the complainant and accused, in addition to how to develop the final report of the investigation. *

The author
Steve Carter, JD, CSRM, ARM, CRM, has been a risk management and human resources consultant since 2006. Previously he wore several hats as risk manager, human resources director, and institutional compliance officer at Camden County College in New Jersey. He began his insurance career working in CIGNA’s major claims department. Before joining the insurance industry, Steve was a career officer in the U.S. Army’s Judge Advocate General’s Corps.