Lynch Law Firm, PLLC
Conducting Workplace Investigations Correctly – Don’t get Trumped
Sexual harassment in the workplace has been receiving increased media scrutiny with the recent resignation of Fox News CEO Roger Ailes, who has been accused of sexually harassing several women over many years at Fox News. Just this week, while defending Ailes in an interview with USA Today, Republican Presidential nominee Donald Trump was asked what would happen if his daughter, Ivanka, were treated similarly in the workplace. His response? “I would like to think she would find another career or find another company if that [were] the case.” His son, Eric Trump, later supported his statements in an interview on CBS This Morning by saying, “I think what he’s saying is Ivanka is a strong, powerful woman; she wouldn’t allow herself to be subjected to that.”
There have already been thousands of tweets, articles, blog posts, and Facebook shares in the wake of these absurd and dangerous notions. The situation has obviously struck a chord with many. Why are the Trumps’ attitudes about sexual harassment in the workplace absurd and dangerous? The comments made by both men represent a fundamental belief that perpetuates sexual harassment in the workplace by shifting responsibility from the perpetrator to the victim. Suddenly, the conversation becomes about what victims, commonly women, can do to deflect or stop the offending behavior. However, the focus should, of course, be on the alleged perpetrator instead of asking questions about what the victim did or didn’t do leading up to and in response to the behavior.
So how can you avoid slipping into the victim-blaming mentality when conducting sexual harassment investigations in your own workplace? First and foremost, you must have a strong company policy against sexual harassment and communicate it to employees. Your policy should broadly define prohibited behaviors (but avoid implying that it is comprehensive), identify channels for filing complaints, assure employees that they will be protected from retaliation, and enumerate consequences for violating the policy.
You must have effective channels by which employees can safely file complaints. An “open door policy” is ideal, but in order for such a reporting mechanism to be effective, the workplace culture must support a safe environment within which to make complaints, especially complaints as sensitive as sexual harassment. Supplementing your open door policy with an anonymous incident reporting system, such as a hotline or a web-based tool, can help ensure that reticent employees have an avenue with which they are comfortable coming forward.
Ensure you have a well-established protocol for responding to sexual harassment complaints that not only protects the reporting employee from further victimization but also treats the alleged perpetrator as innocent until proven guilty. In many cases, it may be advisable to place the perpetrator on administrative leave with pay pending the outcome of your inquiry. In this way, the victim and perpetrator are separated, but neither is penalized while the investigation is ongoing. Remember that any changes to the reporting employee’s conditions of employment (e.g., moving her workstation) may be perceived as retaliatory. A proper strategy does add some extra pressure to resolve the matter efficiently, so your process becomes doubly important to ensure that no shortcuts are taken.
Consult your internal or external counsel regarding your legal obligations both during the investigation and in its aftermath when you are making determinations regarding a corrective or disciplinary action. The attitude that a harassed employee has a character flaw or should be removed from the workplace will inevitably result in an investigation courts will dislike with further claims of retaliation and hostile work environments. Your local counsel can serve as a safeguard as you navigate sexual harassment investigations.
Take all complaints seriously and promptly investigate. The Equal Employment Opportunity Commission (EEOC) offers extremely useful guidance in this regard. Not only does the EEOC offer specific questions to ask involved parties and witnesses, but it also addresses credibility assessments and drawing conclusions.
After the investigation is concluded, take action in accordance with your company policy. If the complaint was validated, you have a responsibility to take measures to “[…] stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur.”1 Some disciplinary measures you may consider taking against the perpetrator include oral or written warnings, job transfer or reassignment, demotion, suspension, or termination. Corrective action may involve individually training or coaching the offending employee, monitoring the perpetrator’s behavior in the workplace, issuing an apology to the victim, restoring any leave taken as a result of the harassment, or removing any negative evaluations or feedback that arose from the harassment. Consistent enforcement of your policy is critical to ensuring that it is effective.
With these guidelines, you should have some basic knowledge for avoiding a victim-blaming attitude and effectively resolving allegations of sexual harassment in your organization. However, contact Natalie Lynch if your organization needs help investigating sexual harassment complaints or establishing internal investigation protocols.
 Equal Employment Opportunity Commission. (1999). Enforcement guidance on vicarious employer liability for unlawful harassment by supervisors. Retrieved from https://www.eeoc.gov/policy/docs/harassment.html
Cite as: Lee, L. M. (2016). Conducting Workplace Investigations Correctly – Don’t get Trumped. Retrieved from https://www.lynchlf.com/blog/conducting-workplace-investigations-correctly-dont-get-trumped/