Hardwood Floors December 2018/January 2019

BUSINESS BEST PRACTICES LEGAL

By Norma Zeitler

Taking Corrective Action on a Harassment Complaint

BigStockPhoto ©

BigStockPhoto ©

Sexual and other types of workplace harassment continue to garner lots of attention by the media, and rightly so because every employee — from the lowest paid worker to the CEO — has the right to work in an environment that is free of unlawful harassment.

attorney/client privilege. This means that if there is a lawsuit, you will be required to produce to the plaintiff all emails, notes, findings, reports, and other documents created as part of the investigation and the remedial action taken. So be very careful with what you put in writing. Less is often better. With that said, an investigation report can be a valuable tool in showing that the company took the complaint seriously and that it took prompt action. A well-constructed written report should include a list of the allegations, and for each, whether the investigator was able to determine if the allegations were true. In many instances, the alleged victim says certain things happened, the alleged harasser denies each of them, and there are no witnesses. In those instances, the investigator should attempt to gauge the credibility of the alleged victim and the alleged harasser. In doing so, the investigator should consider things like: • How long ago did the alleged event occur and is there a motive in play? For example, a recent poor performance review.

In my first article in this three-part series, I explained what harassment is, and best practices to prevent it. In my second article, I explained how to properly investigate a complaint about harassment, which is the first step in taking prompt and effective remedial action and is the obligation of every employer once it becomes aware of the harassment. Now, in part three, I will touch on how and when to write an investigation report and what is meant by effective remedial measures. As you might have gathered from the first two articles, there is no “one size fits all” method of responding to a complaint of harassment. Instead, an employer should take into account the particular facts and circumstances of the situation at hand when determining how to proceed. That is particularly true when it comes to writing the investigation report and fashioning the remedial measures to be taken. As an initial matter, it is essential to understand that unless the report is written by a lawyer and contains the lawyer’s mental impressions, as opposed to the mere recitation of facts learned, neither the investigation report nor the notes taken in the course of the investigation are protected from disclosure by the

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