How to Investigate a Claim of Sexual Harassment

Sexual harassment in the workplace is a serious issue that must be addressed immediately and diligently. While your company policies may be clear and communicated frequently, inappropriate behavior can still occur. Sexual harassment creates a culture of disrespect. When staff members are subjected to harassment, or witness unprofessional behavior, the workplace is diminished. Business leaders must respond quickly to any complaint or suggestion that staff members are being mistreated at work. Your policies against harassment of any kind must be clear, with zero tolerance for unwelcome conduct or attention. Staff members must report any unsuitable behavior. Whether they are the victim or a bystander, sexual harassment is disrespectful and cannot go unanswered. In addition to the effects harassment has on employees, sexual harassment is costly. The EEOC reportedly collected nearly $70 billion from employers to settle sexual harassment claims in 2019.

Consequences of turning a blind eye to harassment

If harassment is left unchecked, expect lower engagement and productivity, and ultimately, turnover. Top talent does not have to tolerate unprofessional behavior. Businesses that turn a blind eye or dismiss sexual harassment concerns or complaints will see a negative impact on their company. If a charge is made, a thorough investigation must be undertaken, and action, if warranted, must be the result. For many SMBs, investigating a claim of sexual harassment is uncharted ground. How you respond is critical to reducing the risk that the complaint escalates to a charge with a government agency or a lawsuit. Understanding what constitutes sexual harassment is necessary to respond appropriately.

What is sexual harassment in the workplace?

There are 2 types of sexual harassment: hostile work environment and quid pro quo. While both have minimal definitions under the law, they have been interpreted and applied in thousands of ways. For both definitions, the key to sexual harassment is that the behavior is unwelcome. If one or more employees are not comfortable with the act(s), then it can be sexual harassment.

If one or more employees are not comfortable with the act(s), then it can be sexual harassment.

A hostile work environment consists of any behavior of a sexual nature that creates an atmosphere uncomfortable (or hostile) to employees. It can include verbal, written, visual, physical, or other acts that are so severe or so commonplace they create an environment that is intolerable. Quid pro quo harassment occurs when an employee is expected to endure unwelcome sexual advances or comply with requests for sexual favors. Tolerance or compliance either directly or indirectly becomes a condition of continued employment. Quid pro quo is typically seen in situations where the harasser has power over the victim, like a supervisor.

Sexual harassment is not limited in scope

Sexual harassment is sexual in nature but not limited in scope. It can be gender-based, including sexual orientation, or gender identity. If employees are teased, disparaged, excluded, or otherwise harassed on the basis of their gender, sexual harassment may occur. Employees must be trained to recognize sexual harassment in the workplace. More than training, they must be comfortable and encouraged to report any incidents to their supervisor, Human Resources, or someone in a leadership position. From there, it’s up to the employer to investigate and resolve the claim quickly and effectively.

1. Hear the complaint quickly and privately

Your policies should be in place and clear: employees are encouraged to notify management of anything inappropriate in the workplace. In some cases, concerns may be made anonymously: these must be investigated even if no specific employee has come forward. If a concern is brought to your attention, make time to hear it as soon as possible: ideally immediately or the same day.

If a concern is brought to your attention, make time to hear it as soon as possible: ideally immediately or the same day.

It may be very difficult for an employee to come forward with a sexual harassment complaint: putting them off, even by a day, may deter them. Acting promptly sends a clear message: this behavior is not allowed and you take every complaint seriously.

Listen to concerns in good faith

Listen to the employee’s concerns in good faith. Assume the staff member is bringing forth the claim in an effort to correct or stop the behavior. Your first job is to listen: allow the worker to provide as much detail as possible in their own words. Don’t comment, apologize, or make excuses. This is the information-gathering stage. Ask for specifics; ask if any other staff members witnessed the action. If the worker has documentation, pictures, videos, or audio recordings, ask for a copy for your file. Assure the worker that you’ll try to maintain confidentiality as much as possible. This may be challenging: if a worker brings a charge against a colleague you will have to discuss the situation with the other employee and any witnesses. Let the staff member know you’ll try to do so anonymously, but that may be impossible depending on the circumstances of the charge.

2. Remain neutral

The initial role is fact-finding. While you may let the employee know you’re sorry they’re upset, neutrality is necessary at the onset of a complaint. Don’t commiserate with the employee, criticize, or offer excuses for the behavior. Comments like  ‘I’m sure they were just kidding,’ or ‘you need to go with the flow’ minimize the complaint. When an employee brings forth a concern initially, your opinion is not warranted. You’re there to gather information to begin an investigation: not conclude one.

3. Discuss professionally

Discussing matters of a sexual nature can be highly uncomfortable for you and the staff member, but professionalism is key. Try to put the employee at ease as much as possible. Let them know while they  may be hesitant to provide details, the more facts you can gather, the better able you be to investigate and resolve the situation. Acknowledge that their bringing the matter to your attention (before filing a complaint with a government agency) is appreciated. Let them know you’ll work to resolve the issue in-house as well as possible. While no employer wants to hear staff members are being sexually harassed, hearing it internally, when you have a chance to resolve and contain the matter, is preferable to an outside charge.

Take detailed notes of the issue being brought forth.

Take detailed notes of the issue being brought forth. Don’t hesitate to ask the employee to give you a chance to document everything. The more information available, the better. Ask for names, dates, specific behaviors or actions, and the names of any witnesses or bystanders who may have seen or heard the act(s).

Sample questions

You may use a question template or allow the discussion to flow organically. In either case, some standard questions should be included and documented. This list can be used for claims of sexual harassment or discrimination:

1. What happened?
   1. Ask for specific details
2. Who committed the alleged act?
3. Did it happen to you, or are you reporting as a witness?
   1. If a witness, who was involved?
4. When did this occur?
5. Where did it happen?
6. Has it happened more than once?
   1. Is it ongoing?
7. Were there any other witnesses to the behavior?
   1. Please name them
8. Can you provide evidence — emails, texts, photos, etc.?
9. Did you tell person you were offended or concerned?
   1. If so, what was their response?
10. Did you report the incident(s) to anyone else?
    1. If so, who and when?
    2. Did they take any steps to resolve the situation?
11. Do you have any other information that might be helpful?

While you’ll want to include all these data points, don’t limit the discussion to a question and answer session. Some answers will have a lengthy response: try to document as much as possible. Ask questions, where needed, to get a fuller picture of the incident(s). Let the employee tell you the entire situation, but don’t allow the meeting to go on indefinitely. Once you have the information necessary, begin closing out the discussion.

Next steps

If the issue brought forth is sexual harassment (or another form of discrimination), assure the employee you will begin investigating immediately. Ask if they’re comfortable going back to work: you may be sending them right back to their harasser. If they are, tell them to report any further infractions immediately. If not, consider allowing the worker time off until an investigation has been conducted. Depending on the severity of the charge, you may recommend (or insist) they take time off as you investigate. An example may be an employee who was physically assaulted. For this type of claim, you may even consider reporting the incident to the police. Alternately, you may be able to make a preliminary determination. If concerns are not in any way of a sexual nature, you may tell the staff member you’ll make inquiries, but the issue does not meet the definitions of sexual harassment. Look into the situation and follow up as soon as possible, to assure the employee you take their concerns seriously.

4. Watch for retaliation

Following a claim, employees may be at risk for workplace retaliation. Let the employee know that retaliation will not be tolerated. If they believe they are being treated differently, or are impacted as a result of their coming forward with a charge, they should report the retaliation immediately. As you manage your investigation, notify all staff they must not confront or harass the employee as a result of their bringing forth a claim. Retaliation is harassment and must not be tolerated. The employee must be treated in the same manner after a charge has been brought as before the complaint.

5. Confidentiality is key

As you discuss the incident(s) warn all parties that confidentiality is required with regard to the matter. No one should be discussing the complaint, including the employee who brought it forward, with anyone other than the investigator. There may already have been conversations around the workplace with regard to the situation. These must cease. Remind everyone that the incident is now a private matter. No one should be discussing it moving forward.

Remind everyone that the incident is now a private matter.

Notify employees that if they are approached to talk about it or hear others discussing the incident, they should let them know it’s private and to stop. If workers feel pressured or threatened by others with regard to discussing the matter, they should notify the investigator. Confidentiality is critical to a successful resolution of the situation.

6. Close the meeting

Finalize the initial meeting with gratitude to the employee for bringing the matter to your attention. It’s highly preferable these cases are dealt with in-house before they can escalate or move to outside agencies. Ask the employee what they want from the investigation. Some workers will simply request an apology and assurance the behavior discontinues. Others will request a transfer or request the accused be transferred. Some staff members may ask the accused be terminated. It’s important to take note of their request but don’t make any assurances that is what will occur. Remind the employee you’re at the initial, fact-finding stage of the investigation. The resolution will depend on the outcome of the inquiry. Let the staffer know you’ll be performing as thorough and comprehensive an investigation as possible, and your goal is a satisfactory result for them and the company.

Next steps

Ask the employee if they would like to be separated from the accused in the interim. You may temporarily reassign them to a different manager or work area if possible, until the investigation is complete. For some workers, reassignment isn’t an option. If not, and the employee is not interested in taking time off, it may be necessary to speak to the accused immediately. Have the employee wait, separately, before they go back to their work area to avoid encountering the accused as you wait for them to arrive. Some employees may request time off until the investigation is complete, which may be a best practice depending on the severity of the accusation. You may want to suggest the employee contact any wellness or mental health resources available if they need assistance. Provide an approximate timeline to follow up. Depending on the nature of the complaint, there may be many people to interview or only one. Give the staff member a date when you will follow up with either a progress report or next steps in the process, and keep to that timeline.

7. Begin the investigation

You may begin immediately, if necessary, or may have to wait to schedule discussions with the accused and any witnesses. As you contact employees to meet, do not tell them the reason for the meeting. You’ll want to schedule as quickly as possible to resolve the complaint but you don’t want to feed the rumor mill. The order in which you interview workers will depend on the complaint. If the incident was not witnessed by anyone else in the company, your only interview may be with the accused. If there were witnesses, speak with them first to gather as much data as possible. Then, if the employee provided evidence — emails, video or voice recordings, etc., review and verify the evidence before moving forward. Your last interview should then be with the accused to hear their response to the accusation. Compile information from those interviewed. Ask if they have knowledge of the incident(s). You may use the same list of questions initially posed to the accuser, or ask for a general statement of what they saw or heard. Some workers will be eager to talk, others may hesitate. Let the staff member know you will do your best to maintain the confidentiality of anything they reveal. Remind witnesses that a respectful, professional workplace is everyone’s goal, but it’s also a responsibility. If workers do not report inappropriate behavior, or refuse to contribute to investigations, they, their colleagues, and the company suffers. Notify everyone you speak with that the matter is private and not to be discussed with anyone, including the accuser, other than the investigator. Remind staff that retaliation against the accuser or the accused will not be tolerated.

8. Meet with the accused

The final step in the investigation will be to speak to the accused. Meet privately and allow ample time to discuss the situation. Let them know a serious matter has been brought to your attention and it’s important it’s resolved quickly and to the satisfaction of all parties. The conversation will be difficult, but it’s important to maintain professionalism and respect. At this stage, you may have ample evidence the incident occurred, or you may have none.

Your professional demeanor sets the tone for the discussion and how you expect them to comport themselves in the workplace.

In either case, your professional demeanor sets the tone for the discussion and how you expect them to comport themselves in the workplace. Let the employee know their full cooperation is required to resolve the situation. Outline the complaint fully: if evidence has been provided, show them any materials that do not infringe on the privacy of witnesses. Their initial reaction may be anger or shock. Allow them a brief period of time to compose themselves before you continue. Then, ask for their perspective on what happened.

Some questions can include:

1. This was reported — please tell me what happened from your point of view
   1. Ask for details and specifics
2. Were there any witnesses you believe may support your view of the situation ?
   1. Please name them
3. Do you have any physical evidence — emails, texts, etc. you can provide?
4. Was there a larger context to the situation?
5. Did the person tell you they were offended or concerned?
   1. If so, what was your response?
   2. Did you take any steps to resolve the situation?
6. Do you have any other information that might be helpful for the investigation?

Impartiality is necessary at every stage of your investigation, particularly with the person who is being accused. Do not take sides, empathize, or apologize. At this point you are fact-finding, not assigning guilt or absolution. Do not offer guarantees the situation will be resolved for or against them; don’t suggest it will ‘blow over.’ If needed, remind the worker your role at this point is to compile facts. A determination will follow, but for now you must remain impartial.

Next steps

Notify the accused they must not contact the accuser to discuss the matter in any way. Let them know if they are required to work together, they must be professional and respectful. Retaliation of any kind, either against the accuser or any witnesses they believe may have participated, will not be tolerated. Any attempt to confront or coerce the accuser or any witnesses will be considered a separate, additional offense. Some staff members may have difficulty managing their emotions after a complaint has been brought against them. If needed, send the employee home until they believe they can interact with the accused professionally. Provide the employee with an approximate timeline for your investigation and determination of the claim. Notify them that you’ll contact them with updates and next steps in the process.

9. Make a determination

After you’ve gathered as many statements and as much evidence as possible, it’s time to review and make a determination. In some cases, the decision is clear. In others, the situation is one person’s word against another’s with no clear proof for either employee’s assertion. A decision will still need to be made and action steps must ensue. Depending on your findings, you may have many or few options moving forward.

If it was unintentional:

In some cases, an employee may make a comment or behave in a manner that unintentionally offended another. If this is your determination, talk to the accused about the behavior and why it was inappropriate. Depending on their preference, you may meet with all parties so a formal apology can be made. Make a note to the employee’s file documenting the situation and warn them to avoid any such behavior in the future.

If the behavior was not sexual harassment:

Some situations may be uncomfortable but don’t meet the standard of sexual harassment. An example might be an employee asks another to go on a date or have lunch together. A single instance would not be considered sexual harassment, but the employee should be advised not to make any further requests of their colleague. After speaking with the accuser, tell the complainant they should notify you if any other requests are made. Let them know you consider the matter closed at this point unless they have any further concerns.

If the behavior was sexual harassment:

You may determine sexual harassment has occurred. Appropriate action steps and discipline is warranted. Disciplinary action can include termination if the behavior was egregious. The level of discipline should be balanced against the offense. You may enact progressive steps or warnings that may include:

• An immediate apology and change of behavior going forward. The employee should be warned a notation is being made to their file and no further infractions will be tolerated without escalating disciplinary action
• A first warning letter, requirement to change the behavior immediately, and a probationary period to assure compliance may be needed
• Progressive discipline if the behavior continues
• Termination, even for a first offense, depending on the severity of the act

If there’s no clear determination

There will be situations where you cannot make a determination on whether or not sexual harassment has occurred. You’ll need to speak with both parties, preferably separately, to let them know you cannot find a clear answer. Advise both not to discuss the situation and to behave respectfully and professionally. Let the employees know the matter will have to be closed without resolution, and to notify you if any other incidents occur.

If the accusation was false

If are able to verify the accusation was false and intended to cause harm, disciplinary measures will need to be taken. When an employee falsely accuses another of sexual harassment, they damage that person’s reputation in the workplace.

If you’re unsure of how to resolve a sexual harassment claim or what disciplinary action is appropriate, contact an expert.

Depending on the severity of the matter, progressive discipline, up to and including termination, may be warranted. If you’re unsure of how to resolve a sexual harassment claim or what disciplinary action is appropriate, contact an expert. Speak with legal counsel or an HR advisor: they may be able to suggest appropriate steps and actions based on the evidence you have gathered.

10. Close the complaint

After you’ve documented every step of the investigation and closed the matter, make sure to keep copies in both the accuser's and accused’s personnel files. In the event of a future incident, you’ll want the information available. You may ask both parties to acknowledge, by their signature, that the matter has been investigated and closed. Do not provide copies of the investigation to either parties, as they may contain confidential information. This could include witness testimony that was important to the investigation, but could cause friction between employees. If a charge is made with a local or federal Department of Labor, your documentation will verify you’ve investigated the matter and may provide an affirmative defense for your company. After the complaint is closed, make sure supervisory staff or HR follows up periodically to ensure the employees are working together with no further incidents.

11. Require training

Training to recognize and prevent sexual harassment in the workplace may be warranted. You may require training completion as a condition of continued employment if an employee was found to have sexually harassed another.

Training all staff periodically is a best practice for business.

Managers should also be trained to recognize inappropriate behaviors among their teams. Training all staff periodically, whether a complaint was lodged or not, is a best practice for business. A professional, respectful workplace is everyone’s responsibility. When employees are trained not to harass, or to report harassment immediately, everyone benefits.

It's vital to investigate and resolve the charge immediately

When an employee brings a complaint of sexual harassment, it’s critically important to investigate and resolve the charge immediately. These behaviors can escalate, and can even put staff members at risk. The problem won’t go away, it isn’t ‘just a joke.’ Sexual harassment diminishes employees and the workplace. A respectful, professional culture does not tolerate sexual harassment.