You Just Got a Sexual Harassment Complaint – What Should You Do?
By VICKY BROWN
Has it happened to you yet? Has someone come to you with a complaint about being harassed, or discriminated against? Wondering what you should do?
Oh sure, I know your company culture is one of full respect and equality. But that doesn’t mean that someone, at some time, won’t accidentally, or with intent, say or do something that’s disrespectful, or designed to make someone feel less than.
The point is, we as leaders, have to do everything in our power to make sure everyone knows the rules of the road. What’s OK and what isn’t. What’s the appropriate way to communicate and treat one another.
And don’t fool yourself, it’s as important from a culture viewpoint – after all, when your team isn’t taking up mental space with concerns about how they’re being treated, they have that much more space and time to do their best work – as it is from a legal viewpoint. Not to be crass, but discrimination or harassment cases can be exceptionally expensive (even if you win), and it’s almost always a lose lose from a PR perspective.
But, there are things you can do, and should know, if you find yourself in a situation where a team member is lodging a complaint.
So, before a complaint even comes in, it’s critical that you have your ducks in a row. You should have a formal anti-harassment / anti-discrimination policy in your handbook. Frankly, even if you don’t have a handbook, you should have a formal written policy. Different states have some slightly different requirements, but generally the policy has to state that any form of harassment or discrimination won’t be tolerated and you should lay out the complaint process.
Do you require that the complaint be in writing. Or, does it need to be made to a specific person. Now again, many states have very specific guidelines around this, so check first. For instance, in California, your anti-harassment policy has to include
- a list of all the protected categories (this includes gender protections);
- it has to clearly state that the policy applies to employees as well as anyone else your employee may come into contact with – people like vendors, consultants or clients
- it has to clearly outline the procedure for lodging a complaint
- allow for the employee to file their complaint with someone other than their immediate supervisor, for instance the HR rep, or another supervisor etc.
There’s more to the list, but you get the idea. The state has carefully laid out guardrails around what has to be included in your policy. And don’t forget to get every employee’s signed acknowledgement, and be sure to put that in their file.
Next up, you have to have posters that provide information about your anti-harassment workplace. These are generally included in those large federal and state posters you buy every year.
What, you aren’t getting new posters every year? OK, we can talk more about that in a future episode. But for now, I’ll just say – you have to have them, so definitely reach out to a poster company or your payroll company so you can get that wrapped up.
“… in California generally outsourced HR consultants cannot conduct workplace investigations. To be able to do an investigation, if you aren’t an employee of the company, you must either be an attorney or have a private investigator’s license.“
OK, so you have a policy, you have posters. What happens at the point of impact – the moment when someone files a complaint.
Well, you’re going to have to do an investigation. Now, an investigation of alleged discrimination or harassment has to be done very carefully, because it may have to stand up in court. You have to be fair to all parties involved, maintain as much confidentially as possible, and still try to get to the bottom of what happened. Then, once all the evidence has been gathered, you’ll have to make a decision around how you, as a company, is going to respond.
And again, your response has legal as well as company culture implications.
All that to say, you definitely shouldn’t go it alone. Once you have a complaint, that is the moment you need to reach out to your employment attorney. They will help guide you through launching an investigation.
Now, be aware that they may not conduct the investigation themselves, since they would be the ones defending you if it came to that – but they can either help you, or make recommendations around an investigator.
An odd pro tip here – in California generally outsourced HR consultants cannot conduct workplace investigations. To be able to do an investigation, if you aren’t an employee of the company, you must either be an attorney or have a private investigator’s license. Feel free to use that little bit of knowledge to dazzle your friends.
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You know, one of the best ways to be prepared is to make sure your staff is training in what is and what isn’t harassment or discrimination, and what to do about it if you’re a victim, or if you’re a bystander. In fact, in many states, training is an ongoing requirement.
By the way, before we go any farther, can we agree that it’s not Harassment Training. I don’t know about you, but I have no intention of teaching people how to harass. It’s Anti Harassment training.
Better yet, it’s let’s work hard to have a Respectful Workplace training because, yes – you want to meet the regulations. But more importantly, you want your business to be an environment where people feel welcomed, a part of, and where they can do their best work (maybe even better than their best).
So, if you get a compliant, no matter what you do, don’t ignore the problem just hoping it will go away – trust me, it won’t.