How to Respond to Sexual Harassment and Retaliation Claims
By Joseph Swerdzewski
When a claim of sexual harassment is received by a manager or supervisor, the way in which it is handled matters greatly for both the employer and the employee. If improperly handled, it can have a major impact on the employee’s trust in the management of the organization as well as may create an even greater liability on the part of the employer.
An employee usually finds it very difficult to make allegations about sexual harassment or discrimination. They worry about the consequences and the effect the complaint will have on others in the workplace. They may even feel both vulnerable and concerned about losing their job.
The employer should therefore show respect, understanding, and concern, including during the initial responses to the complaining party. Employees and managers may have misbehaved and violated employer standards, and the complainant may be legitimately upset and concerned about that behavior. Swift and appropriate action, including thanking the employee for raising the concern as well as quick initiation of an investigation, sends a message not only to the complaining employee but also to others watching for the employer’s reaction.
Employees who observe the employer taking concerns seriously are more likely to seek an internal resolution and less likely to resort to litigation.
When receiving such a complaint the manager/supervisor should be mindful of the following:
Employees do not have to use “magic” words such as “harassment” when making a claim that warrants employer action, so managers must understand the concern well enough to determine whether the issue should be treated as an allegation of harassment or a hostile work environment.
The first thing is Do NOT ignore it. Once someone comes forward to a manager, the employer is now “on notice.” Being on notice creates legal liability for the employer’s actions, particularly if nothing is done about a legitimate claim. The manager receiving the claim should listen and take the issue seriously, be professional, and be nonjudgmental. The manager is not supposed to determine the validity of the complaint, but rather only to gather enough facts to be able to forward the matter for investigation. The manager should contact the Human Resources office to be advised of the employer’s protocol when an employee talks with a manager about a claim of sexual harassment.
Resist making statements that imply a judgment or position such as: “maybe he or she didn’t mean it,” “maybe you should not dress that way,” or “maybe you should not have responded the way you did.”
Assure that the “victim” is aware of available employer resources, such as counseling services.
Assure that the “victim” is aware anonymity cannot be guaranteed. Advise witnesses, including the “victim,” that he or she will not be advised by the investigator of the outcome of the investigation and whether corrective action was taken due to privacy concerns (i.e., manage expectations).
Ask the “victim” if he or she would like to be temporarily moved to a different location (or telework) during the pendency of the investigation. Changing the “victim’s” hours, duties, and physical location, etc. without communicating with them and working through interim measures; can be viewed as retaliation.
Assure that the “victim” is aware of his or her right to seek redress through formal processes, such as a union grievance or EEO complaint. The manager should find out what offices need to be involved and make contact as soon as practicable, as the EEO, Security, and/or Human Resources, etc. may need to be involved.
When briefing others on the initial complaint, assure that you use a “need to know” approach. In other words, which offices need to know about the complaint, and what information do they need to know. Managers in the chain of command of the alleged bad actor may also need to know that an investigation will be occurring as well as the nature of the allegation, but they likely do not need to know all the details of the allegation. A briefing based on a “need to know” basis will protect them from accusations of pre-judging a situation (especially if these managers may end up participating later as a proposing or deciding official). When putting anything in writing about the complaint, be aware of the possibility that any written document could be discoverable.