Handling a Sexual Harassment Claim

What you are trying to find out through an investigation is:
did the alleged behavior occur and was it unwelcome.

Yes, dear readers, it happens even in co-ops.

Oh, not the kind of outrageous behavior we read about in Supreme Court cases. Co-op managers aren't the kind of guys who order their female employees to dig change out of the manager's pocket or publicly joke about how a female purchaser must have got a good deal by sleeping with the broker. Male co-op employees aren't likely to put up PLAYBOY centerfolds in the backstock area to annoy their female coworkers.

On the other hand, sexual harassment can take subtle forms. A supervisor asks a female employee out for a date. She turns him down and he doesn't ask again. But then he gives her an unsatisfactory evaluation and denies her a raise. Is this an act of retaliation or a legitimate management decision based on actual poor performance? Or an employee makes comments on how a female coworker dresses. He thinks he's making harmless banter but she feels offended. Furthermore, harassment doesn't always have to involve a male perpetrator and a female victim. Any behavior that is unwelcome to the receiver and that is based on the receiver's gender could be considered sexual harassment.

Court cases of the past decade have made it clear that employers must take seriously any allegations of harassment from an employee. First, before any incidents arise, it is important to have a written policy stating forcefully that the co-op will not tolerate harassment. There are other forms of harassment besides that based on gender, but this article will focus specifically on how co-op management should handle claims of sexual harassment once they occur.

User-friendly reporting system

The co-op needs to set up a safe, nonthreatening mechanism for reporting incidents of harassment. It's not enough to tell employees to talk to their supervisor. The supervisor may be the very person committing the acts of harassment. Or the supervisor may be good friends with the harasser. If the general manager is not the supervisor, s/he may be the logical person for the employee to approach. But perhaps the employee sees the general manager as part of the problem. If there is a personnel or human resources coordinator on the staff, this could be the best option for the employee. If there is no such position, or if the employee sees the human resources coordinator as a non-neutral or otherwise unsafe person to contact, the board president or chair of the personnel committee (ifthere is one) could be appointed as yet another channel for reporting harassment. Whoever receives harassment claims should be properly trained in how to respond.

Initial interview

The person receiving a report of alleged harassment should handle the claim as follows:

Treat the employee with respect and take her/his claim seriously enough to spend the time to meet with her/him alone and document her/his claim. At the same time, neither agree nor disagree with anything the employee says. Remain attentive and sympathetic, but do not take her/his side or the side of the accused. Reassure the employee that s/he will not suffer retaliation for making the claim.

Document the claim by getting the employee's version of events covered in the initial interview. Ask questions to get factual details -- who, when, where. Ask if there are any potential witnesses or other evidence (e.g., notes, letters). Ask the employee what steps s/he has taken to end the unwelcome behavior. Finally, ask the employee what outcome s/he would like from the investigation of the claim. This could range from a simple apology and the cessation of the offending behavior to complete separation between the employee and the offender in the workplace. Use active listening to be sure you understand what the employee is saying.

Let the employee know what to expect. Explain that a thorough investigation process will follow that will result in a finding about the claim of sexual harassment and disciplinary actions taken by management if warranted by the finding.

After the interview, write down what the employee said, show it to her/him, and ask for corrections or clarifications, and then ask her/him to sign it. This is the documentation of the claim of harassment and the foundation of the investigation that will follow.

Confidentiality

Ask for confidentiality and state the intention of the co-op to keep the claim confidential from all but the alleged harasser, witnesses and the investigators. Sometimes employees will come forward with claims of harassment but then are unwilling for the alleged harasser to be contacted. In that case, explain that you can't conduct an investigation or take any action to make the unwelcome behavior stop. If the employee still doesn't want any management intervention and cannot be reassured about protection against retaliation, then nevertheless document the interview and have the employee sign it (and don't put it in anyone's personnel file!). If you later become aware of other allegations ofharassment regarding the same person, or if the employee changes her/his mind about pursuing the claim you will be prepared for an investigation.

Conducting the investigation

What you are trying to find out through the investigation is: did the alleged behavior occur and was it unwelcome? An investigation involves an interview with the alleged harasser(s), interviews with witnesses if any, re-interview with the employee for more in-depth information, review of the personnel files of employee and alleged harasser, and review of any other evidence (bathroom graffiti, letters, pictures, messages recorded on answering machines, etc.). In the interviews, pursue the facts - dates, times, places, names. Ask follow-up questions to get the details.

Document all the interviews as you did the initial interview in which the employee made the claim ofharassment. Have the interviewee read your writeup, correct it as needed and sign it. In every document ofthe investigation make clear whether a statement is referring to known facts or to the opinions of the people involved.

The person who received the claim may or may not be the person to conduct the investigation. In no case should the alleged harasser be involved in conducting the investigation. However, a board member might not have the time or expertise to investigate but could delegate the matter to the general manager, a lower level manager, or human resources staff if they are not involved in the claim. There are advantages in having two investigators, a woman and a man.

Rights of the accused

As with the employee making the claim of harassment, don't take sides. Treat the accused with respect, don't assume any wrongdoing. Be very careful not to make any statements that could indicate that you have prejudged the case or bear any ill will toward the alleged harasser. Quite aside from issues of fairness, alleged harassers have sued their employers for defamation or wrongful termination.

Did harassment occur?

Determine if sexual harassment in fact occurred. In some cases the accused will freely admit the specified behavior but will claim that s/he didn't think it was unwelcome. You will need to explain that intent is not relevant in a claim of sexual harassment. The crucial point for the harasser to grasp is that this behavior cannot continue. In this case your job is relatively easy because there is no disagreement as to facts.

However, there are cases where the accused denies that the events took place as described by the employee, and there are no witnesses or other evidence to corroborate one side or the other. When everything rests on the relative credibility of the two parties, you may not be able to come up with a factual finding. You may believe one person more than the other. But however strongly you feel, without known facts on your side you could be opening up the co-op to a lawsuit if you make a determination based on your opinion.

In such cases your best recourse is to notify the accused in writing that if the alleged behavior did occur, it would be illegal sexual harassment. Accompany this with a copy of the co-op's policy on harassment. Without accusing him/her, you are putting him/her on notice that such behavior is unacceptable. If there are future incidents involving this person, it will be harder for him/her to deny responsibility.

Remedial action

If you are sure that sexual harassment occurred, you need to take some form of disciplinary action, but the severity of the action depends upon a number of factors. It would be appropriate at this point to consider the wishes of the harassed employee. If s/he is content with an apology and is willing to go on working with the offender, if it is a first-time offense, if the offender is cooperative and willing to change his/her behavior, it may be sufficient to place a written warning in that person's personnel file. In addition, you could require that the offender get some kind of training in sensitivity to sexual harassment. Check out your state's Human Rights Commission (or Commission Against Discrimination) for seminars.

If the unwelcome conduct has gone on for a long time in spite of the employee's efforts to make it stop, if there are other employees with the same complaint against the offender, or if the offender takes a defiant or hostile attitude, you may want to suspend him/her and write a more severe warning indicating that any more incidents of harassing behavior will result in immediate termination. If the unwelcome behavior was really outrageous or if the offender was found to have lied in the investigation, it would probably be appropriate to terminate the harasser as a result of this investigation. There is no formula; you'll have to use your best judgment, and your attorney's advice, in each case.

In considering the wishes of the harassed employee, you may decide to move the offender to another department or another schedule to decrease contact between the two (if your business is big enough to provide that option). If the offender is to continue working at the co-op, s/he must be made to understand that any act of retaliation against the employee who brought the harassment claim will result in further disciplinary action. Encourage the employee to come forward immediately if s/he perceives any retaliation on the part of the offender. Claims of retaliation will need to be investigated in the same way as claims of harassment, but the credibility of the offender will not be as high as it was before your finding of sexual harassment in the initial case.

Give positive reinforcement to the employee for taking constructive action to end the offensive behavior. First of all, s/he should receive notice of the outcome of the investigation and actions taken as a result. In some companies management has issued a formal apology to the harassed employee and thanked her/him for coming forward. In severe harassment cases you could offer to pay for counseling for the employee.

Besides putting a warning or other type of reprimand in the file of the offender, keep the records of the entire investigation in a separate file.

Customers and vendors

You don't need to go through as rigorous an investigation with allegations of harassment by outsiders as with allegations concerning other employees. Document the initial interview as laid out above, interview any witnesses and review any evidence that may exist. Once you have as many facts as possible, confront the customer, delivery driver, broker or vendor and explain that their behavior is unwelcome and must not continue.

If the alleged harasser in this case denies the allegation, at least s/he will have been put on notice. If the unwelcome behavior continues, you can take further action. You can get a restraining order to prevent a customer from coming in the store, following an employee home, calling her/him at home, etc. A purchaser could talk to vendors about the behavior of delivery drivers or sales reps. If that doesn't bring results, the general manager could talk directly to the manger of the company with the offending employee or service provider. I know of a co-op that stopped buying from a vendor because of the unchecked offensive behavior of a delivery driver.

A claim of sexual harassment is serious business. Everyone involved in handling a claim needs to maintain strict confidentiality, refrain from taking sides until all the facts are known, and carefully document every aspect of the case.

This article is not intended as legal advice or as pertaining to any specific factual situations.

See other articles from this issue: #066 September - October - 1996