Harassment: Mitigating the Risk of Liability

Have a written policy
Every organization should have a clear written policy on harassment and ensure that all employees read, understands, and agrees to the policy. The policy should:
1. define harassment in its various forms;
2. make it clear that no form of harassment will be tolerated;
3. notify employees of how to report harassment;
4. stress that it is not only a right, but a duty, to report harassment to responsible management;
5. warn employees of the disciplinary actions that could result from violations of the policy; and
6. Provide a framework for investigation and remedial actions in harassment situations.
On notification to employees on how to report harassment, the policy should provide for the situation of what to do if the alleged harasser is in the employee's chain of command. Many companies try to designate one specific employee, usually in the human resources department, to receive and handle all harassment allegations; the rationale behind that is to give employees the feeling that they will not have to put their jobs at risk by complaining to their supervisors, to encourage quality investigations by having a more neutral person handle them, and to ensure consistency in investigations and results.
Importantly, the general personnel policy should make it clear to employees that ordinary supervisors do not have the power to hire and fire, to set pay or change pay, to transfer, to change shifts, or to deny promotions. Make it clear that such authority to take tangible job actions exists only with certain employees and that adverse job actions will be reviewed before becoming effective.
Mandate Employee Training
Have all employees attend education programs to train them on the many forms harassment can take and how the organization will help them respond to any such problems. The programs should go over the organization's harassment policies in detail and ensure that each employee is familiar with the ways to report and deal with harassment. The organization should place notices, in addition to the ones required under federal and state laws, reminding employees about the policy and ways to report harassment.
Have an Effective Response System
Have an effective response system to prevent reoccurrences or retaliation. Such action can include separation of the employees by temporary reassignment or transfer or letting the complaining employee or alleged harasser have paid time off. Whatever action is taken should not seem or appear to place the complaining employee in an unfavorable position. Also seriously consider asking the complaining employee what he or she would like to see happen to provide relief or remedy in the short term.
However, the organization is not obligated to do whatever the employee demands. Do not accuse the alleged harasser of harassment at this stage, since unfounded accusations can boomerang against the organization in the form of a defamation lawsuit. Simply inform the alleged harasser that an investigation will take place. Document all the steps the organization takes, and let the complaining employee know how important it is to the organization that they feel comfortable at work.
Treat each harassment complaint seriously. Let the complaining employee know that the complaint will be investigated and dealt with. It is fairly common for an employee to complain and then to ask that no investigation be done, either to spare the harasser some job trouble or to spare the complainant the trouble of going through a troublesome process. Never make the mistake of honoring such a request! Tell the employee that the policy requires an investigation and that one will occur in this case.
The investigation should involve not only the complaining employee and the alleged harasser, but also any employees who might have witnessed the harassment. When questioning employees, do not start out by asking "did you see John harass Mary?", rather ask witnesses if they were in a certain area on a certain date, whether they noticed any other employees there, whether other employees were doing something that was perhaps out of place or questionable, and exactly what it was that they saw.
That way, the organization is more likely to get candid answers, and turn up evidence of wrongdoing. Document the investigation: who was questioned, when, where, who else was present, what was said, and so on. Remind anyone who is questioned that they are to keep the investigation absolutely confidential and that revealing the allegations or discussions to anyone else could violate other employees' rights to privacy.
Keep the investigation documentation in a separate, file from the normal personnel file. This is to minimize the chance that unauthorized people will find out about the allegations and possibly publicize them in such a way that your company becomes liable to the alleged harasser for defamation.
Document Action Taken
At some point, organization will have to decide what happened and whether some action beyond the temporary steps already taken is necessary. The law does not require organization to find that harassment occurred; if the investigation does not justify such a finding, let the complaining employee know the conclusions, thank him or her for using the process, and reassure the employee that no retaliation or harassment will occur as a result of the complaint being filed. If the finding is that harassment occurred, take the appropriate action under the organization policy. Some harassment may warrant termination, but other forms of harassment may merit only a counseling of the harasser, a formal warning, a permanent transfer, a suspension, a demotion, or some other adverse job action short of discharge. Whatever action taken, document it and place the documentation in the investigation file.
The question often arises -what the personnel file should reflect concerning action taken against someone disciplined for harassment. It is usually best to simply state in the personnel file that a certain action was taken for "violation of the harassment policy", or words to that effect, and to give a reference to further documentation in the investigation file.
Organizations that follow these steps should find themselves in a much better position in court or before the EEOC in case of any legal action for harassment. Since the Supreme Court rulings are so clear that liability results from a tangible job action in the case of a supervisor harassing a subordinate, the general personnel policies should make it clear that authority to change the terms and conditions of employment is vested only in certain carefully-designated people and that ordinary supervisors have no such authority - all employees must be aware of these facts!
In general, use organization policy and documentation to show that the organization did the best to ensure that the complaint was dealt with effectively and that the employee was fairly treated; that if harassment occurred, it was without any knowledge or approval on the part of the organization; and that no tangible adverse job action resulted against the employee. If the employee quits without taking advantage of their rights under the harassment policy, then argue that a reasonable employee would not have quit without affording the employer a chance to address their problems. If the employee quits without any notice whatsoever about the alleged problems, point that out and argue that the organization had no opportunity at all to try to correct whatever problems allegedly existed.