If an investigation doesn’t corroborate that harassment occurred, both parties may, naturally, be upset. What should we do then?
Quick Answer
Explain fully and clearly to both parties that you conducted a prompt and thorough investigation; that the investigation did not corroborate the allegations; and that you maintain a continuing commitment to preventing working harassment and retaliation.
Legal Perspective
FordHarrison LLP
Orlando, Florida
A finding of “no harassment” can still expose you to legal risk if not handled appropriately, says employment law attorney Marilyn Moran (mmoran@fordharrison.com) of the firm Ford Harrison LLP. Steps to take:
- Ask the alleged harasser to sign your anti-harassment policy. It’ll remind them of the rules and show you took reasonable efforts to prevent harassment.
- Thank the complainant for bringing the issue to your attention and assure them your door is always open if problems arise in the future.
- Document your investigative steps thoroughly – including the basis for your conclusion. Stress to both parties that retaliation is prohibited.
- Develop a plan to avoid future problems between both parties.
Relevant Case Law
Chinery v. American Airlines
Montgomery v. American Airlines
Christian v. AHS Tulsa Regional Medical Center, LLC
HR Insight
First Place AZ
Phoenix, Arizona
Offer continued harassment training to all in an effort to ensure everyone’s on the same page, advises HR Manager Sarah Marchese.
Depending on your company’s budget allowance, you could also offer to pass the matter to an outside consultant. If that’s not an option, mediation between the two parties with HR present could also be conducted.
However, HR will want to make it clear to both parties that the meeting is not to prove one person right or wrong, but rather to come to an understanding about what was construed as harassment; what led to the initial complaint; and other relevant issues specific to the situation.
Melmark
Andover, Massachusetts
If an investigation doesn’t corroborate that harassment occurred, both parties may, naturally, be upset, acknowledges Mary Morris, Director, Head of HR.
I’d still continue to navigate the situation with care. Because no evidence was found, does not mean that the company has no legal risk.
For one thing, I’d document the investigation thoroughly, making sure that the various steps taken to conduct the investigation were outlined and the basis for concluding that there was insufficient evidence to establish a violation of the company harassment policy was explained. Even if no violation was found, I’d ask the alleged harasser to sign a copy of the company’s anti-harassment policy.
I would also stress that retaliation is prohibited. I’d follow up with both the alleged harasser and the complainant regularly (say at 15, 30, 60 and 90 days) to find out whether any further issues occurred between them.
I would thank the complainant for bringing the matter forward and assure them that HR is always available if problems arise in the future. I’d also emphasize that the company takes all such complaints seriously, and appreciates being made aware of a potential issue.
Last but not least, I’d develop a plan for avoiding further problems. For example, would more training help? I would do my best at every step of the way to communicate with compassion and fairness. Doing this will help to minimize any frustrations that the employees may feel and also avoid problems in the future.
Pareto's Talent a LIFT Consulting Company
Madison, Wisconsin
Have an open, transparent conversation with both parties, says Laura Mael, Director of Recruiting.
Ideally, you can have that conversation with them in the same room and come to an agreement about future expectations and guidelines for appropriate interactions.
The Cost of Noncompliance
Sexual harassment dispute: Jury orders employer to pay $470 in damages — plus back pay
Who was involved: Rosebud Farm, Inc., and a former employee who worked as a butcher in Illinois.
What happened: The butcher alleged male co-workers harassed him by simulating oral and anal sex and grabbing his genitals and buttocks. He said the harassment persisted for four years despite his repeated complaints. He sued to allege harassment under Title VII, and a jury returned a verdict of more than $2 million in the butcher’s favor. Due to Title VII’s statutory caps, the district court reduced the damages portion of the award. The employer appealed, arguing the butcher did not show the co-workers harassed him on the basis of his sex.
Result: The Seventh Circuit upheld the verdict, noting that there were men and women in the workplace, and the butcher presented evidence that only men were harassed. Thus, it affirmed the district court’s ruling, awarding $470,000 in damages and $69,791.80 in back pay.
Info: Smith v. Rosebud Farm, Inc., 898 F.3d 747 (7th Cir. 2018).
Employer pays $300K to settle harassment claim
Who was involved: Equifax Credit Information Services, Inc., and a former employer who worked as a debt collector in Kansas.
What happened: The woman’s lawsuit alleged she was repeatedly harassed by co-workers and supervisors. She reported the incidents to the office general manager, who had the authority to discipline employees and who was responsible for implementing HR policies, including an anti-harassment policy. He brushed her complaints aside, telling her that the men were revenue producers while she was not and that she would just have to tolerate their behavior. When she sued for sexual harassment, a jury awarded her $5,000 in compensatory damages and $1 million in punitive damages. The district court reduced the punitive damages award to $295,000. The employer appealed, arguing the punitive damages award was excessive.
Result: Under Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999), the standard for punitive damages was not how egregious the employer’s conduct was, but rather the employer’s knowledge that it might be acting in violation of federal law, the Tenth Circuit explained. Here, the general manager’s actions were not merely inadequate; they were reckless and malicious. Thus, the appeals court affirmed the ruling in the woman’s favor, finding the $295,000 award for punitive damages was not excessive despite compensatory damages of only $5,000.
Info: Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262 (10th Cir. 2000).
Key Takeaways
- Always document the results of any harassment investigation.
- Assure the complainant that your investigation was prompt, thorough and impartial.
- Reassure and remind the complainant and the accused that you are committed to ensuring a workplace that is free of harassment and retaliation for reporting alleged harassment.
- Remind both parties of your policy relating to harassment.
- Remind both parties of the consequences of policy violations.
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