By Sue Erwin Harper
Partner, Nelson Mullins Riley & Scarborough, LLP

Proper investigation of sexual harassment complaints can yield big benefits for employers. A prompt and thorough investigation, followed by appropriate action to end any harassment, can actually insulate an employer from liability under certain circumstances.

While an employer is strictly liable if a supervisor’s quid pro quo harassment causes an employee to lose tangible job benefits, an employer is liable for harassment due to a hostile work environment only if it knew or should have known that harassment was occurring and failed to take prompt steps to end it. An example of quid pro quo harassment is a TV show host discharging an assistant producer for refusing to engage in sexual activities with him. A hostile environment exists when the workplace is permeated with abusive conduct and messages that are sexual in nature and which interfere with work. Courts in numerous hostile environment cases have ruled employers who responded swiftly to harassment complaints were not liable for sexual harassment. This article focuses on the effective investigation of hostile environment claims.

There are elements an employer should put in place before an employee complains about sexual harassment that will provide a strong foundation for such an investigation:

Maintain a written policy that specifies what sexual harassment is, how to respond to it, and the possible penalties for it. The policy should be well publicized, put all employees on notice of prohibited conduct, establish a procedure for reporting and investigating claims, and provide alternative avenues for employees to report harassment.
Train managers and supervisors about how to handle complaints, requiring them to report any harassment brought to their attention. Management should maintain confidentiality to the extent possible, but no one may promise a complainant absolute secrecy because the employer is obliged to investigate.

Once a complaint is received, it is critical that the complaining parties be separated from the alleged harassers and that the investigation begin promptly. The employer should choose an investigator who is unbiased and competent, who is completely removed from the events that led to the complaint, and who is not intimidating. The investigator should be knowledgeable of applicable law and investigatory standards, familiar with the employer’s procedures and policies, and trained in investigative techniques.

An internal investigator may be better for larger employers who have an HR department and procedures for handling harassment claims. A private or outside investigator may be more appropriate for employers who lack a credible investigative team or the resources to develop one. An employer may want its regular outside counsel to investigate; however, this may disqualify that firm from representing the employer in litigation arising from the claim, so unrelated counsel experienced in such investigations may be a better choice.

The investigator should assemble and maintain a file to document all phases of the investigation and actions taken, as this will be critical in any ensuing litigation. It should include:

A written complaint detailing what happened, signed and dated by the complainant, along with any documentary evidence the complainant can provide;
Copies of applicable employer policies;
Personnel files of those involved to identify problems or difficulties that may have been encountered previously;
Any other pertinent evidence, such as previous complaints, time sheets, diaries, calendars, etc.

After completing the interviews and reviewing any evidence, the investigator should compile a confidential report of findings and recommendations for the employer’s decision makers. The report should include the initial complaint, a description of any evidence reviewed, the witnesses who were interviewed, what they said, and an assessment of their credibility. It should apply the relevant law and policies to the factual findings to conclude whether sexual harassment occurred. Finally, the investigator should recommend a course of action, to include appropriate discipline and other remedial action, if any.

For his or her actions to be deemed satisfactory, an employer must respond to claims with “prompt and effective remedial action” that is “reasonably calculated to end the harassment.” There are no rules about what specific remedial action should be taken. The employer is well-advised to adopt the investigator’s recommendation; if not, it should document strong, specific reasons it did not do so.

The employer should advise the complainant of the investigator’s general findings and the action, if any, being taken to resolve the complaint. The employer should follow up after implementing the investigator’s recommendations to ensure that they are actually being followed and that the harassment has stopped. If harassment is still occurring, then further measures are necessary. Documentation at the follow-up stage is critical because the effectiveness of the employer’s actions may later dictate whether it is liable for a hostile work environment.

In determining what steps to take, the emphasis should be on eradicating the sexual harassment quickly and by the most efficient means. At every stage—receiving a complaint, conducting an investigation, taking appropriate action, and following up—an employer should act promptly, do what seems appropriate, and then continue to monitor the situation to assure the steps it has taken have actually eliminated the harassment.

Sue Erwin “Corky” Harper, a partner of Nelson Mullins Riley & Scarborough LLP, leads the Firm’s labor and employment practice in Columbia, South Carolina. Certified by the South Carolina Supreme Court as a specialist in employment and labor law, her practice includes representing corporations in employment discrimination litigation, the trial of trade secret claims, enforcing and challenging covenants not to compete, and defending individual and class actions alleging wage and hour violations.