The most important anti-harassment policy is always prevention. One of the best ways of handling sexual harassment is having a clearly written policy stating that sexual harassment is not tolerated. This policy should clearly assure complainants would not be treated negatively for making a claim of harassment. An anti-harassment policy is not effective without such assurance. A good practice is to have a telephone number that employees can call anonymously with questions and concerns about sexual harassment. Once an allegation is made and it is evident that an investigation is necessary the fact-finding investigation should be launched immediately.
According to The Equal Employment Opportunity Commission (EEOC) and as the Supreme Court stated, “Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.” While the Court noted that this “is not necessary in every instance as a matter of law,” failure to do so will make it difficult for an employer to prove that it exercised reasonable care to prevent and correct harassment. Anti-harassment policies and procedures should be provided to each employee, preferably during the initial training and post the written anti-harassment policy in central locations such as break rooms and locker rooms and redistribute it regularly. The policy should contain a clear explanation of unacceptable conduct, assurance that complaints will not be followed by retaliation and a suggested means of filing a complaint. It should include a statement of confidentiality and assurance of an impartial investigation and immediate corrective action along with time frames for filing charges of unlawful harassment with the EEOC or state fair employment agency. Anti-harassment policies should include all forms of harassment: whether based on age, sex, race, religion, national origin, disability and include harassment by anyone including supervisors, co-workers and non-employees.
Harassment complaint procedures should be designed to encourage victims opposed to discouraging victims of harassment with invasive reporting procedures. A procedure that appears too complicated and full of obstacles can discourage reports. Employees should be encouraged to report harassment early, before it becomes severe and disruptive to their work environment. Effective complaint processes establish accessible contacts outside the chain of command for the initial complaint. Employees should understand that while the employer will make every attempt to protect confidentiality, certain information must be shared to conduct a proper investigation. Even if the employee requests no action, an employer has a responsibility to investigate allegations or be held liable.
While each case will vary tailor complainant interview questions accordingly, very basics questions should include: who, what, where, when and how:
- Who committed the alleged harassment? What happened exactly? When and how often did it occur? Where did the harassment take place? How did it affect the complainant?
- Did the alleged harassment affect your job in anyway?
- Are there witnesses? Is there anyone with relevant information? Did you tell anyone that you were harassed? Did anyone see you immediately following the alleged harassment?
- Do you know of anyone else harassed by the same person? If so, did they report the incident?
- Is there any physical evidence, notes, or documentation regarding the incident or incidents?
- How would you like the situation resolved?
Once the complainant is interviewed, the EEOC offers a guideline of questions to ask the alleged harasser:
- What is your response to the allegations?
- If the harasser denies the allegations, ask why the complainant might lie and if there is anyone that may have relevant information?
- Is there any physical evidence, notes, or documentation regarding the incident or incidents?
You should also interview any third parties that may have relevant information. The following questions are useful as a guideline for interviewing witnesses or third parties:
- What did you see or hear? When did this occur? Describe the alleged harasser?s behavior toward the complainant and toward others in the workplace.
- What did the complainant tell you and when did he/she tell you?
- Do you have other relevant information or do you know of anyone else that would have relevant information.
Once an allegation is made, and all parties have been interviewed the interviewer will need to weigh each parties credibility to reach a determination. During this process measures should be taken to prevent all contact between the harasser and complainant. The complainant however should not be transferred involuntarily. Upon reaching a decision the parties should be informed of the determination. For more information visit the Helmer Friedman LLP sexual harassment, employment violation leaders at http://www.helmerfriedman.com.
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