Part 2 of 5

Rumors and innuendo: what are your obligations when you're faced with hints of sexual harassment but no complaint by a victim?

An all too common scenario, and one that everyone in HR or management will likely face at some point in his or her career, involves the unofficial report or observation of sexual harassment. It could come in the form of a rumor, or through an I-don t-want-to-be-the-one-to-tell-you-but type of report, or perhaps you walk by and catch some sort of innuendo between a supervisor and a subordinate that raises a red flag.

In light of case law that imposes liability on employers under a "should have known" standard, it would appear that merely being on the receiving end of such office gossip could be enough to prompt your duty to act.

When to Look Further When You Have Not Received a Complaint
Because liability is imposed when an employer "should have known" of the harassment in question, the employer cannot simply assume that the victim s failure to come forward with a complaint absolves your organization of liability. As an agent of your employer, once you have heard about potential sexual harassment, then your duty to take prompt and appropriate action commences. You must immediately set and follow a course of action that will undoubtedly change depending upon the information that is revealed.

Step 1: Talk to the Alleged Victim if Appropriate

Common sense must be your guide in this situation. It is always appropriate to talk to the alleged victim if the reports you have heard, if true, would constitute sexual harassment. However, if the reports have come from an unreliable source and are unsubstantiated, and will prove too painful or embarrassing, then it may be best to conduct a group training for all associates in which you:

• Remind employees of your organization's strong commitment to maintaining a safe and productive, harassment-free workforce
• Make sure that all associates are aware of the various reporting options that exist for bringing a sexual harassment complaint
• Remind employees of the types of conduct that could constitute sexual harassment, and encourage employees to monitor their own behavior and tailor comments and conduct appropriately. When in doubt, employees should assume that their coworkers are overly sensitive, and gear their conduct accordingly
• Encourage employees to come forward if they have feel they have suffered or are suffering any sort of sexual harassment, by ensuring that each and every complaint will be investigated thoroughly, and that retaliation of any sort will not be tolerated

If it is appropriate to speak to the alleged victim, then follow the following guidelines:

• Inform him or her as to what you have heard, in a neutral and non-accusatory style.
• Develop the facts, including what happened, who was present, who else might corroborate his or her story, etc.
• Determine whether sexual harassment occurred, whether further investigation is necessary, or whether "monitoring" is warranted:
  • Consider what was said as well as non-verbal signs
  • Listen for the employee's feelings as to whether he or she has been subjected to sexual harassment.
  • Keep in mind to meet that in order to constitute sexual harassment "unwelcomed conduct" the victim must not have invited, reciprocated or encouraged the behavior, so be sure to listen for clues regarding that aspect as well.
• If the conduct involves a supervisory employee, and the witness states that he or she has suffered sexual harassment, inquire as to whether he or she reported the behavior to anyone. If not, ask whether the employee is aware of the methods available for reporting sexual harassment at your organization, and determine why the employee chose not to report the conduct.

Step 2: Document Your Notes and Findings

• Document the facts and just the facts, leaving off speculation and your own biases.
• Consider having the witness sign a statement of his or her account. If the witness has stated that no further inquiry is necessary because no sexual harassment has occurred, then get a signed statement reflect this. If he or she claims sexual harassment, then get a statement as to why no complaint had been brought.

Step 3: Set Your Course of Action

If no harassment has occurred:

• Make sure that the witness knows that she or he knows that your organization is committed to maintaining a harassment-free organization
• Review procedures with witness detailing how and to whom sexual harassment complaints can be brought

If inconclusive or harassment is suspected:

• Investigate further

What if You Don't Act? Can Your Organization Really Face Liability?
If the initial rumor is ignored, and sometime later, a sexual harassment lawsuit based is brought based upon the rumored conduct, then the court may decide that your organization was on notice from the time you first heard the rumor. Your organization may then face liability for failing to respond promptly. The following guidelines must be kept in mind when preparing to investigate sexual harassment:

1. Investigate promptly

• Initiate an investigation as soon as practicable, either the same day, or the following day after a complaint is lodged.
• Remember that waiting to commence an investigation longer than necessary probably would not be considered prompt remedial action.
• Consider that prompt investigation, even when wrongdoing is not found, reaffirms an employer s anti-harassment policy laying an even more solid framework for the affirmative defense.

2. Don t wait for a complaint to be lodged, where observed conduct constitutes sexual harassment.

• Investigate suspected wrongdoing.
• Review with supervisors definitions of prohibited conduct, and encourage investigation before a complaint is filed when necessary.

3. Don t allow your internal investigation to stand in the way of reasonable avenues for complaints.

• Thorough and careful investigations send a message to employees that the employer does have an effective vehicle for sexual harassment complaints.
• Avoid a policy that requires employees to file complaints with their immediate supervisors; instead provide several avenues for an employee to complain and allow the employee to bypass his or her supervisor, who might be the harasser.

4. Follow through.

• After the investigation has been completed and the final report has been submitted, the employer should advise the complaining party of the outcome of the investigation.
• Remember, lack of communication with the victim may discourage future victims from bringing complaints, and leave an employer unable to point to a victim s failure to take advantage of the employer s anti-harassment policy and complaint procedures.
• Provide any necessary training, counseling, and support, and assure the complainant that cooperating employees have not been subject to reprisal for their role in the investigation.
• Remember effective training in response to a singular incidence will demonstrate to a jury the organization s commitment to preventing sexual harassment.

Additional Resources
Free Checklist: Determining if Conduct is Harassment

Sexual Harassment Prevention Training Manual for Managers and Supervisors book helps management meet the challenge of properly dealing with this sensitive issue.

You may also be interested in the online training course, Discrimination and Harassment Prevention or other titles available through CCH's Shared Learning eLearning program.

NEXT: Part 3 will cover appropriate investigation of harassment complaints.

Course content has been provided by Council on Education in Management.