30 MAY / JUNE 2018 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Article author I n the wake of the #MeToo movement and related media coverage, sexual harassment claims and allegations are on the rise. Prior survey data from the Equal Employment Opportunity Commission indicated that 25 percent to 75 percent of female workers felt they had been sexually harassed at work, but the vast majority never reported it, whether for fear of retaliation or other reasons. Those statistics are likely to change in light of the #MeToo movement. Most companies have policies prohibiting sexual harassment and an internal reporting system to investigate claims, but those measures alone will not protect an employer from liability. Employers must exercise reasonable care to prevent and correct harassing behavior, starting with employers being aware of problems in the workplace and taking sexual harassment complaints seriously. Employers should conduct mandatory training for all employees, including executives and managers. Employees should be encouraged to speak up and report any objectionable or demeaning behavior. When an informal or formal complaint is made, an employer should take immediate steps to investigate and provide an effective response, including taking corrective action to ensure illegal or inappropriate behaviors stop. This is true even if the alleged victim was not the one who complained or does not want an investigation. Prompt investigations can help identify problem behaviors and resolve them before they become widespread. An employer will be judged on how it responds to a complaint and what it does to prevent a problem from recurring. A good investigation and effective response to a complaint may provide an employer with a legal defense, while a poorly executed investigation can damage the employer’s credibility and lead to liability. The manner and method used for the investigation must withstand scrutiny, whether it is before a court, arbitrator, government agency or a face-to-face meeting with the employee. Investigations require planning and follow-through. Start with the right investigators. Having more than one investigator provides a corroborating witness in the event the interviewee raises accusations related to the interview itself (e.g., accusations of threats or intimidation). Investigators should be approachable, have strong interpersonal skills, and be perceived as neutral and fair. An employee who has a close personal or professional relationship with the accused or the complainant, or other vested personal or business interest in the matter, should not serve as an investigator. An employer must also determine whether immediate action is necessary to stop or minimize harm (e.g., separate employees or temporarily appoint a different supervisor). However, an employer must be cautious not to take any action that could be perceived as punishing the complainant or as imposing Sexual Harassment Importance of training and effective workplace investigations
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