Question

An employee came into Human Resources to “let us know” that her supervisor has made comments that make her uncomfortable.  She was light on details, but mentioned his use of a word that is unacceptable in the workplace.  She said she doesn’t want it to be a big deal but thought we should know.  How should we deal with this?

Answer

Your employee has made a report of harassment and you are required to investigate it.  You should inform the employee of your obligation and begin an investigation without delay. While you may not welcome the moment, the Massachusetts Commission Against Discrimination (MCAD) guidelines on sexual harassment law is a good place to start preparing for your investigation.

All Massachusetts employers of six or more employees must adopt a sexual harassment prevention policy and must issue that policy to all employees at the time of hire and annually. Many employers use the MCAD model sexual harassment policy. Remember to issue it annually and require employees to acknowledge receipt of the policy in writing. Inclusion of the policy in the employee handbook alone will not satisfy the state’s notice requirements.

As part of the annual re-issue process, employers should review the policy to make sure the correct contact person is listed to receive harassment complaints. While the law requires only one named person the MCAD guidance strongly urges employers to have two people, one of each gender, to receive complaints. Whether it is one person or more, Massachusetts General Laws chapter 151B, s. 3A makes it clear that the sexual harassment policy must contain a “description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made.”

Responding to a complaint

Encourage employees to come forward to any supervisor or manager or other appropriate individual within the organization with verbal and written complaints. Be prepared to offer language assistance to employees with limited English proficiency.

The manager or supervisor should immediately report any complaints to the designated person(s) and/or the designated department. At the same time the person who receives a complaint should reach out to the individual making the complaint to explain the following:

• Keep the complaint confidential to the extent practicable under the circumstances;
• The company will conduct a prompt, neutral investigation into the allegations; and
• The company will not tolerate any form of retaliation against the complainant for having complained of sexual harassment.

Investigation

The employer must investigate a complaint of sexual harassment as soon as practicable, even if an employee asks the company not to investigate. While every investigation has its own peculiarities, the nature and duration of the investigation will depend on the circumstances of the complaint, including the type, severity and frequency of the alleged harassment.

Employers should investigate the allegations as fairly and expeditiously as possible while trying to maintain confidentiality. People interviewed, including the parties to the complaint and witnesses, should be cautioned not to speak with coworkers about the investigation. That said, the employer needs to make clear to the employee filing the complaint that as part of the investigation, it may not be possible to withhold the complainant’s identity from the alleged harasser.

The employer’s investigation should generally include interviews with:

• the complainant,
• the alleged harasser,
• witnesses,
• individuals identified as having relevant knowledge of the matter, and
• anyone else whom the employer believes may have such knowledge.

The employer’s investigation should also include a review of any documents, journals, recordings (e.g., surveillance footage), photographs, voice mails, e-mails, telephone records, or other items that may be relevant to the allegations of harassment.

As part of the investigation process, the investigator should create and maintain a confidential investigative file separate from the personnel files. The file should include any materials relevant to the investigation, including but not limited to interview notes, relevant employment documents, journals, recordings, photographs, voice mails, e-mails, telephone records, or other items pertaining to the allegations or the investigation into them.

It may be necessary or advisable for the employer to take steps to minimize the risk of retaliation against the person filing the complaint. Issues may include:

• the express wishes of the complainant;
• the nature and extent of the allegations;
• the personal safety of the complainant;
• the number of complainants;
• whether the alleged harassment is of an ongoing nature;
• the behavior of the alleged harasser; and
• whether the alleged harasser has an alleged or actual history of engaging in harassment.

Remedies might include:

• placing the alleged harasser on administrative leave;
• placing the complainant on administrative leave if the complainant so requests:
• transferring the alleged harasser, or the complainant if the complainant requests the transfer, to a different area/department or shift so that there is no further business/social contact between the complainant and the alleged harasser;
• instructing the alleged harasser to stop the conduct; and
• eliminating the alleged harasser’s supervisory authority over the complainant.

The employer should continuously monitor any protective steps it takes throughout the investigation to determine their effectiveness.

Reaching a determination

Upon completion, the investigator should prepare a final written report documenting the investigative process and the findings including any conclusions. The employer should inform the complainant and the alleged harasser of the findings. If sexual harassment is found to have occurred, the employer must take prompt and appropriate remedial action designed to end the offending conduct and prevent future harassing conduct. The employer should continue to monitor the situation to ensure compliance with the investigation findings.

Remedial action includes:

• promptly halting any ongoing harassment;
• taking prompt, appropriate disciplinary action against the harasser;
• taking effective actions to prevent the recurrence of harassment, including conducting a sexual harassment training where appropriate; and
• making the complainant whole by restoring any lost employment benefits or opportunities.

The degree to which the employer has taken prompt and appropriate remedial action depends upon many factors, including the timeliness of the actions and whether, given the circumstances, the actions were reasonably likely to stop the conduct and prevent it from recurring. The inquiry into whether the employer took appropriate action is focused primarily on whether the remedial action ultimately succeeded, taking into consideration whether, under the circumstances, the action was reasonably calculated to succeed.

Alternative remedy

Although the goal of every employer should be to conduct a prompt and thorough investigation that addresses the complaint filed, not every employee will be satisfied or will necessarily report an incident to the company at all. The law permits employees to file a claim with the MCAD and/or the Equal Employment Opportunity Commission up to 300 days after the date of the alleged incident.

In response to a complaint filed at the state or federal agency, the employer will need to answer that action. If the company has already investigated, much of the work will be done.  If the company was never aware of the complaint until received in the mail, the business will have 21 days to develop an answer to the complaint.

Employers want to encourage a culture in which people come forward with complaints about sexual harassment or any discrimination issue, providing the company an opportunity to address the issue as quickly as possible. That includes issuing the organization’s harassment policy annually, providing employees with training on their rights and responsibilities under the policy, and knowing what to expect when a complaint is filed.

AIM members with a question about this or any other human resources matter may contact the AIM helpline at 800-470-6277.