The avalanche of complaints emboldened by the #metoo movement shows no sign of relenting, and many caught in its cross-hairs have been unceremoniously fired or forced to resign based on allegations of harassment. Of course, when such allegations arise in the employment context, employers have a duty to investigate and to take action when there is evidence of serious misconduct, but what if your investigation does not corroborate the allegations? What then?
As an initial matter, the fact that your investigation does not corroborate allegations of harassment does not mean that the allegations were false or that the complainant can or should be disciplined for making unsupported accusations. To a large degree, harassment is subjective, and what is offensive to one person may not be offensive to another. Legally, conduct must be both objectively and subjectively offensive, and severe or pervasive, and based on a protected characteristic (such as sex, race, or religion) before it may be considered harassment.
While employers usually apply a less stringent standard than the courts in determining whether sexual harassment has occurred, there are still a variety of circumstances when an investigation may not corroborate allegations of sexual harassment, even though the complainant provided an accurate description of the conduct and the complainant’s subjective reaction to the conduct. For example, an investigation may reveal that the incident complained about was not based on a protected characteristic. Alternatively, an investigation may reveal that the evidence is inconclusive because there are no witnesses or other evidence to either support or refute the allegations. In other instances, an investigation may corroborate that some type of unprofessional conduct indeed occurred, but the conduct complained of was not serious enough to establish a violation of the company’s anti-harassment policy.
Whatever the reason, an investigation that yields a finding of “no harassment” still has the potential to expose your company to unnecessary legal risk if not handled appropriately, so here are five steps to follow when navigating this tricky situation:
1. Even if you don’t find a violation, ask the alleged harasser to sign a copy of your company’s anti-harassment policy. This will have the dual benefit of reminding the alleged harasser of the importance of appropriate workplace conduct and the consequences for violating the company’s policy, and it will help the company defend against future claims by showing that the company’s policy was made known to employees and the company made reasonable efforts to prevent and correct harassment in the workplace.
2. Thank the complainant for bringing the issue to your attention and assure him or her that your door is always open if problems arise in the future. The complainant will likely be discouraged or frustrated with the outcome of the investigation, but you can help lessen the sting by emphasizing that the company appreciates being made aware of the situation and takes all such complaints seriously.
3. Document your investigation thoroughly, including the various steps you took to reach your conclusion and the basis for concluding that there is insufficient evidence to establish a violation of your company’s anti-harassment policy.
4. Stress that retaliation is prohibited. You should stress your company’s non-retaliation policy to both the complainant and the alleged harasser. In addition, follow-up with both of them on a regular basis (such as in 15, 30, 60, and 90 days) to find out whether there have been any further issues or problems between them.
5. Develop a plan for avoiding future problems. Even if your investigation determines that no disciplinary action is warranted, you should develop a plan for avoiding future problems between the employees. Is the problem based on a personality conflict? Are there any steps that could be taken to improve communication and avoid misunderstandings between these employees? Would additional training help? If the relationship is beyond repair, is it possible to separate these employees in a way that would not trigger an accusation of retaliation or unfair treatment? Consider each of these issues, as well as the employees’ input and suggestions, to determine how best to move forward after the investigation.
Not every investigation will result in a finding of harassment or warrant disciplinary action for violating company policy, and that’s a good thing. By following these five steps, you can communicate the outcome of your investigation with compassion and fairness, while protecting your business and, hopefully, avoiding future problems down the road.
