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Written by Liz McDermott |
A violation of your sexual harassment policy is an extremely serious issue. If an employee is accused of sexual harassment in the workplace, the company needs to ensure they follow the correct legal procedure in dealing with the situation.
#1 Write An Incident Report
Firstly, you need to investigate the allegation of harassment:
- Record the date of the infraction
- The names and positions of involved employees
- The type of harassment and what happened
Place a copy of the incident report in the employee files and keep a hard and digital copy for your records.
#2 Get Statements From Those Involved
Ask for statements from employees who may have witnessed the episode, then interview the employee accused of the harassment. Do this in the privacy of an office with a closed door. Ask specific questions about what was said and the physical contact that occurred, and inform them of what they have been accused of.
Even though it may be obvious to the employee who has made the allegations or witnessed them, don't give the accused any information regarding the person who made the statement. At this point, it is important to not only protect others from potential retaliation, but also the privacy of the accused. Someone accused of workplace misbehavior has the same rights as anyone else to be free from discrimination.
#3 Start An Investigation
A thorough investigation is required, as a false accusation can lead to discrimination or retaliation liability. This, in turn, means an employer can lose a defense by maliciously publishing or disclosing false information to people who do not need to know the investigation results. An employer can also not conduct a criminal background check using an outside agency without the employee's consent. The right to consent to an investigation and to see the investigation results do not apply to in-house investigations by the employer or their attorney.
#4 Review Your Sexual Harassment Policy
Review your company's sexual harassment policy and all available information regarding your company's response. In many cases, employees can be terminated due to one incident of verbal or physical bullying, threats, inappropriate touching, and unwanted sexual attention.
#5 Communicate Procedures Effectively
Maintain a professional manner throughout, cite the offense committed, and explain that it's necessary to fire the employee. Depending on company policy, instruct the employee that his last paycheck and benefits will be mailed or presented on their immediate departure. The now ex-employee must collect their personal belongings and immediately leave the premises accompanied by a security guard.
You do not have a legal duty to disclose to the public that an employee was fired due to a sexual harassment investigation. Some state laws might even prohibit you from indiscriminately disclosing why an employee was terminated.
#6 Gather Training Records
All employers may want to maintain records on employee sexual harassment training to avoid claims of non-compliance. If training is mandated, failure to provide it as required will make an employer much more vulnerable to liability should an employee sue in court for sexual harassment. Where unlawful sexual harassment is found, ignoring the training mandates opens an employer to punitive damages, often several times greater than the employee’s compensatory damages.
For more information on employee education, please contact us to inquire about our Sexual Harassment Prevention training program.