Hardwood Floors December 2018/January 2019

Taking Corrective Action (Continued)

• Has anyone else complained about the alleged harasser? • Are there circumstances that would support one version of the events over another? • Did any of the witnesses appear hesitant to answer the questions posed, and most importantly, what does your gut instinct say? It is not uncommon, even after considering and answering the above questions, for the investigator to conclude that it is impossible to determine, one way or the other, whether the events of the complaint actually happened. If this is the case, the investigator should simply document in the report why the investigator was unable to determine whether the harassment occurred. Once the investigation is completed, it is time for the employer to take effective remedial action. As you might guess, there is no bright-line rule that defines the meaning of the phrase effective remedial action. Instead, the remedial action to be taken should be based on the facts and circumstances of the particular situation (see graphic at right). Effective remedial action ranges from a simple reminder of the employer’s policies to termination – again, depending on the frequency and severity of the conduct and whether it was substantiated. When fashioning the remedy, employers must remember that the effectiveness of the remedial action will be judged with the benefit of hindsight. That is, if the harassment continues and the victim files a lawsuit, a jury will decide long after the fact whether the action taken by the employer was effective. With this in mind, once the investigation has been completed and the remedial action has been taken, the employer should: • Remind the alleged harasser of the employer’s policy prohibiting harassment, as well as retaliation, and inform him or her of the disciplinary action to be taken. • Let the alleged victim know that the investigation has been completed, that appropriate action has been taken, and that the victim should immediately report any further harassment and/or retaliation. • Document that each of the above items have been done. • Follow up with the alleged victim periodically to make certain that all is OK. To summarize, it is critical for every employer to put in place an effective harassment policy. It also is crucial that every employer take prompt and effective remedial action when faced with a

What facts might effective remedial action be based on?

The frequency and severity of the conduct.

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The relative positions of the alleged victim and the alleged harasser.

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The relative risk to the organization (both of retaining and terminating the alleged harasser). Whether the conduct was substantiated (meaning the investigator concluded that it occurred).

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complaint of harassment. This three-part series provides ideas on how to do this. But like most things in the HR space, these ideas are not a substitute for expert legal advice. So, unless you have an experienced HR professional to guide you, you would be well-served to retain an experienced HR attorney to help you navigate this process if you ever are the recipient of a complaint of harassment. 1RUPD =HLWOHU LV DQ DWWRUQH\ DQG SDUWQHU LQ WKH &KLFDJR RIÀFH RI %DUQHV DQG 7KRUQEXUJ //3 7KH ÀUP VHUYHV DV 1:)$·V OHJDO FRXQVHO )RU PRUH WKDQ WZR GHFDGHV 1RUPD KDV FRXQVHOHG FOLHQWV on a variety of employment law matters and litigated employment law cases. She can be reached at norma.zeitler@btlaw.com or 312.214.8312.

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