WHAT SHOULD I DO WHEN AN EMPLOYEE CLAIMS SEXUAL HARASSMENT?

The Equal Employment Opportunity Commission and the Michigan Department of Civil Rights vigorously investigate employment-related claims. Employers must do so as well, especially when there is a claim of sexual harassment. Investigating claims helps deter and correct improper conduct. After conducting a prompt investigation, an employer should take remedial action if improper conduct is found. This helps prevent liability in the future.

 Sexual harassment is unwelcome conduct of a sexual nature that is sufficiently persistent or offensive to unreasonably interfere with an employee's job performance or create an intimidating, hostile, or offensive work environment. This includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: 1) submission to such conduct is made either explicitly or implicitly a term or condition of employment; 2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or 3) such conduct has the purpose or effect of unreasonably interfering with individual work performance or creating an intimidating, hostile, or offensive working environment. 

So, what should employers do when an employee makes a sexual harassment claim? There are specific vital steps northern Michigan's employers should take as soon as they become aware of a sexual harassment allegation.

• Promptly initiate an investigation: An prompt investigation shows due diligence. It helps limit an employer's liability. It also ensures that remedial action can be taken as soon as possible.

• Develop and preserve relevant documentation: If an employee is claiming sexual harassment, there is a duty to preserve documentary evidence, including emails and text messages, because a lawsuit is reasonably foreseeable. Failure to preserve evidence could result in severe sanctions. Moreover, documentary evidence is essential to an investigation.

• Take remedial steps to protect employees during the investigation: Employers may be well-advised to have an employee take a paid leave of absence while the investigation is ongoing. Other temporary remedial steps may be well-advised as well. Employers must ensure they are sensitive to the complainant's concerns.

• Make sure employees are not retaliated against: As soon as the investigation begins, it should be clear to employees that they will not be retaliated against for participating in the investigation. Employees often fear reprisal. This can inhibit the investigation.

• Familiarize yourself with relevant company policies and State and Federal laws: The EEOC and MDCR have published a significant amount of guidance on the State and Federal laws that affect sexual harassment claims. Employers should ensure that they are familiar with the basics of these laws.

I think hiring outside counsel may also be well-advised. An independent investigation by a neutral attorney is one of the best ways to ensure impartiality, expertise, and proper analysis. This can help prevent liability for the employer and provide appropriate remedial action to protect the employees.