How to Handle an Employee Complaint of Harassment

If an employee has complained of harassment at your company, you may be feeling nervous about what to do. After all, harassment claims can lead to poor morale, workplace tension, and even lawsuits. But if you take the complaint seriously and conduct a thorough investigation, you can reduce the legal and practical risks.

Complaint Process

Before you even get a complaint, you should think about your company's procedures. Do you have a written policy against harassment? Does it explain what harassment is and how employees can report it? You should.

The Supreme Court has held that companies that have an effective policy banning harassment, including a complaint process, and that thoroughly investigate employee complaints, can avoid liability for certain types of harassment claims. To take advantage of this protection, however, you must take your legal obligation to provide a workplace free of harassment seriously.

That means, among other things, making it easy for employees to report harassment and following up appropriately on any complaints you receive. (Check out Nolo's Employer's Harassment Policy, which will help you meet these obligations.)

Who Will Take Complaints

An effective harassment policy must tell employees how and where to report harassment. You should always choose more than one person to take complaints, to accommodate employees who may have a complaint against one of the people designated or who simply don't feel comfortable with one of them.

You should never require employees to complain only to their own manager or supervisor. Often, this is the person about whom the employee wants to complain. If you have a human resources department, you can designate them to take complaints.

Investigating a Complaint

Here are a few basic rules to follow when investigating a complaint of harassment. Of course, how you proceed will depend on the facts of your situation. You can find detailed information on how to conduct an investigation in The Essential Guide to Workplace Investigations.

• Don't pass judgment or make assumptions. Your job is to gather as much information as you can. If you jump to conclusions, employees might not think you are being fair. And, you might not get all the information you need to figure out what happened.
• Don't allow retaliation. It's illegal to punish an employee for making a complaint of harassment or participating in a company investigation of harassment. Make sure everyone involved knows that retaliation won't be tolerated, and take all complaints of retaliation seriously. Retaliation will hinder your investigation, poison the workplace, and possibly lead to legal claims against your company.
• If you suspend the accused employee, do it with pay. Do not suspend the accused employee without pay while you investigate: This signals that you've already made up your mind, and could lead to wage and hour problems. If you feel it's necessary to get the accused employee out of the workplace while you get to the bottom of things, put the employee on a paid suspension -- and investigate as quickly as possible.
• Look for evidence. In every investigation, you will need to interview at least the employee who complained and the employee accused of harassment. In some cases, there will be witnesses to interview, too. You should think about what witnesses and evidence may exist in every case. For example, if the complaining employee says an incident happened at a meeting, who else was there and in a position to see or hear it? If the complaining employee says the incident took place at a company party, did anyone take pictures? Did the employee talk to anyone right afterwards? Thinking creatively about the evidence will help you get to the bottom of things.
• Keep careful notes. Make sure you document every interview, including every important statement. Keep notes of all the steps you took during the investigation. Depending on the circumstances, you may also need to put together a report explaining what you did, what you concluded, and why.

Taking Action

Once you've gathered the evidence, you'll have to decide what happened and what to do about it. If you conclude that harassment took place, you should act quickly to put a stop to it.

You must prevent any further inappropriate behavior and correct any that has already taken place, through discipline or even termination, depending on the severity of the situation. You may also need to take wider action. For example, if your investigation reveals that employees don't really understand appropriate workplace behavior or how to complain about harassment, some company-wide training may be a good idea.