- Create a complete written record of what you’ve heard or read. As noted in last week’s post, it’s important to have a consistent way of recording complaints. First responders should take extensive notes about what a complaining employee says during their first contact, and should also take the time to review and complete those notes immediately following the conversation. If there is a form that needs to be filled out concerning the complaint, it should be completed as soon as possible. If a complaint comes in via an anonymous call, the recorded call should be preserved and a written summary created. If a complaint is made in writing, the information it contains should be transferred to any form that the employer’s procedures call for, and the written complaint should be attached to that form. The first responder’s goal should be to put as much information as possible in writing as quickly as possible, and to treat each complaint consistently.
- Inform those who need to know (and nobody else). Employers should have a procedure in place that establishes who will be informed of a complaint of harassment. As a general rule, information about a complaint should be shared only with those who need to know in order for appropriate responsive action to be taken. That may include in-house counsel, HR management staff, and certain members of upper management. It does not necessarily include the complaining employee’s supervisors, or upper management not directly involved in complaint handling. Complaints of harassment make for great gossip, and it’s important to limit the opportunities for gossip to spread. The identity and role of each person informed of the complaint should be noted in documentation.
- Assemble your resources. The information provided by the complaining employee is important, but it is only one part of what an employer must consider in responding to alleged harassment. Other employees may have relevant information. The individual or individuals whose conduct is being complained about will almost certainly provide important information. Managers and supervisors of the complaining employee and the alleged harasser may have relevant knowledge or information. Personnel records of both the complaining employee and the alleged harasser can provide important historical information and may include relevant context. Paper records and electronic data may contain critical information and communications. Before beginning an investigation, all known resources should be identified and, in the case of records and data, secured. This may be a task for the first responder, or it may be the responsibility of HR or in-house counsel.
- Plan the investigation. Harassment complaint investigations may be lengthy and complex or short and simple. It’s hard to predict exactly how the investigation will proceed when a complaint is only recently received. Every investigation, however, should begin with a plan. The plan may change as information comes in, and that’s fine, but first steps should be mapped out in advance and should be identified based on the particular facts and circumstances surrounding the complaint.
- Determine who needs to be updated, and how, as the investigation proceeds. Upper management, in-house or outside counsel, or HR management may need or want to be updated while a complaint of harassment is investigated. If updates are expected, determine in advance when and how they should occur. Complaining employees sometimes ask to be updated during an investigation. If such updates are promised, they should occur as and when the complaining employee expects them.
- Create accountability. The law requires that employers take timely and appropriate responsive action when complaints of harassment are made. Someone needs to be accountable for carrying out that legal mandate. At the early stages of responding to a complaint, it’s important to create clear lines of authority and responsibility to ensure that what’s necessary gets done.
While these early steps are only part of what an employer must do when faced with a complaint of harassment, they can provide a sound foundation for the investigation, conclusion, and responsive action that follow.
For additional guidance on harassment investigations, we recommend the EEOC’s Enforcement Guidance, Employment Law Commentary newsletter, and this 2009 newsletter from CCH.
Posted by Judy Langevin