#MeToo: How Business Owners Should Handle a Sexual Harassment Complaint

August 6th, 2018

What Every Business Owner Should Know Before, During and After a Sexual Harassment Claim

Regardless of the size of your business, any complaint of sexual harassment by an employee is a serious allegation with potentially disastrous consequences.  It is therefore extremely important that businesses have solid policies and procedures in place relative to sexual harassment in the workplace.

While some small and medium businesses do not have a full time HR department, every business should have:

(1) a handbook explaining to all employees what exactly constitutes sexual harassment;

(2) clear policies explaining how employees can report sexual harassment;

(3) an open door policy encouraging the reporting of sexual harassment allegations;

(4) specific personnel assigned to the handling sexual harassment claims; and

(5) specific written procedures for handling sexual harassment claims.

This article will focus on how to handle a sexual harassment complaint.

If you are a business owner, or manager, and an employee comes in with a complaint of sexual harassment, there are immediate steps you should take:

Encourage the Employee to be Open and Detailed about the Complaint

First, you should make sure that you inform the employee that the company takes the complaints seriously and that you want the employee to be as open and detailed with you as possible.  Make sure you make the employee feel comfortable in relaying the details of the harassment to you.  Encourage the employee to tell you absolutely everything about the complaint of harassment.  Make sure you take detailed notes about the accuser, the accused, and get all dates and instances of harassment written down.

It is also very important to ask the accuser if they are aware if anyone else has been harassed by the accused.  If this is a larger problem you want to make sure that everyone impacted is protected and has the ability to come forward.  Finally, make sure that you let the accuser know that they will not be retaliated against for their reporting and that you will be conducting an immediate investigation.  If the accuser wishes to go home for the day with pay, you should allow them to do so.

Contact an attorney immediately

If you have an attorney, you should call the attorney immediately after the employee lodges a complaint.  Depending on the severity of the allegations, it may be necessary to suspend the accused, or allow the accuser to have some time off if desired.  It is extremely important to consult with an attorney before taking actions such as these, especially if your business does not have an HR department.  These claims are very serious, and the way the company handles the allegations can make or break a lawsuit.

Conduct a thorough Investigation

After contacting your attorney, it will be important that you conduct a thorough investigation of the allegations and document interviews, facts, and any evidence.  You should sit down with the accused and get their full version of the story.  If they admit to any wrongdoing, you should suspend them immediately.  Even if they deny the allegations, you may want to suspend them with pay for a short period of time, so you can conduct your investigation.

Upon the advice of your attorney (depending on the sensitivity of the allegations) you also want to make sure you interview any co-workers or supervisors that may have witnessed the alleged harassment.  Make sure to document the interviews in writing.  Ensure the co-workers and supervisors that they will not be retaliated against for coming forward with information.

You also want to make sure to go through any emails or written internal communications between the accuser and the accused.  Make sure to flag any important emails and include them in your final written report.

Make sure to separate the accuser and the accused during the investigation

If you have a small business, it may not be possible to suspend the accuser or permit time an indefinite time off for the accused.   However, it is imperative that you ensure that the accuser is not in any situation where they do not feel comfortable.  This could lead to disastrous consequences for the employer, even if the accused ceases the alleged harassment.  If possible, the accuser and accused should remain completely separated until the investigation is complete and until an attorney has had a chance to opine on the allegations.

Prepare a Written Report after the Investigation

It is extremely important to prepare a written report after your investigation.  If you have taken good notes during your investigation, you will be able to simply put these notes into your report.  A thorough investigative report can be the difference between a lawsuit and a grievance.  After all, an employer will not necessarily be liable for sexual harassment by a co-worker if the employer did everything they could do to investigate and prevent the alleged harassment.

A comprehensive report shows that the employer has looked into all aspects of the investigation.  It shows that the employer took the allegations seriously, did all they could to garner the relevant facts and evidence, conducted proper interviews, and made an informed post investigative decision.

Post Investigative Decision

The post investigative decision is the most important part of the complaint process.  The decision the employer takes could remedy the situation, or it could invite a lawsuit.  The employer must decide whether, after the investigation, the prudent course of action is to reprimand or terminate the accused, or to allow both employees to continue to work at the company.  If the complaint is found to be legitimate, it is imperative that the accuser feels like they are an active part of the process, and that they are content with the thoroughness of the investigation and the disciplinary post-investigative decision.

Consult a Sexual Harassment Attorney

In conclusion, it is important that you encourage the accuser to be open and fully report their claims; further, you must thoroughly investigate the sexual harassment claims, and make a final report and disciplinary decision if necessary.  It is imperative to consult with an attorney during this process.  Any wrong step could lead to a long and expensive lawsuit.