How To Address an Employee Sexual Harassment Complaint
When an employee complains that he or she is experiencing sexual harassment of any type, the employer has a legal, ethical, and employee relations obligation to thoroughly investigate the charges. Find out how!
Difficulty: Hard
Time Required: As Much As Necessary
Here's How:
Before a complaint is filed, make sure you have posted and informed all employees of your organization’s policy relative to sexual harassment. It won’t be tolerated; it will be investigated.
Assign a staff member to “own” the complaint. This individual should be knowledgeable about the organization, the people in the organization, and the history of the organization.
Map out a plan that covers the important people and situations to investigate in the initial complaint. Basically, plan the investigation, based on current knowledge.
Talk with the employee who is complaining. Guarantee to the employee that he or she is safe from retaliation and took appropriate action in reporting the incident or general situation.
Inform the employee that you need to know immediately about any retaliation, purported retaliation, or ongoing harassment the employee experiences.
Ask the employee to tell you the whole story in his or her own words. Listen; take notes. Write down relevant facts such as dates, times, situations, witnesses, and anything else that seems relevant.
Tell the person accused that a complaint has been filed, and that no acts of retaliation or unethical actions will be tolerated. Ask the person to be patient while you conduct a thorough investigation.
Assure the person accused that a fair and just investigation will be conducted on their behalf as well as that of the accuser.
Interview any potential witnesses in the same manner. Interview any potential witnesses in the same manner. Ask open-ended questions and seek facts that support or disprove the employee’s allegations.
Interview the person who is accused of sexual harassment. Apply the same listening and respectful approach you accorded the person who filed the complaint and the other witnesses.
Take all the information you received and attempt to reach a decision. Make the best decision that you can with the information you have. Consult with other HR colleagues to do the right thing.
Make decisions about whether sexual harassment occurred. Provide the appropriate discipline to the appropriate people, based on your findings. Make work or assignment setting adjustments if necessary.
Recognize that you are not perfect, no situation can be perfectly investigated. Even when harassment may have occurred, there may be no facts or witnesses that corroborate a complainant’s statement.
Assure that no further incidents occur by following up, and documenting your follow-up. with the employee who made the original harassment claim.
Keep documentation separate from the personnel file.
Afford the employee, who may have been wrongly accused, the same courtesy of follow-up and documentation. Adjust working situations fairly where necessary for the comfort and productivity of all.
The compliant that should be given in writing by an aggrieved woman is with reference to “a complaint of sexual harassment at workplace”. Even an oral complaint can be given to the presiding officer or any member of Internal Committee in the event the complaint cannot be given in writing. There is a time limit specified for giving such complaint as well. Section 10 contemplates a conciliation on receiving such a complaint and if the matter is not settled through conciliation, an enquiry has to be conducted in terms with Section 11( Inquiry Report).
The enquiry has to be conducted in accordance with the procedure prescribed as per service rules applicable to the respondent. In the case of a domestic worker, the Local Committee shall forward a complaint to the police for registering a case under S.509 of I.P.C. if prima facie, it is found that a case exists against the respondent. The Internal Committee is given the power of a civil Court while trying a suit under the Code of Civil Procedure, especially to summon and enforce the attendance of any person and examining him on oath, requiring the discovery and production of documents or any other matter as may be prescribed. Chapter V deals with such other steps that could be taken during the enquiry and after receiving the enquiry report.
Section 13 is Inquiry Report.
An order passed under Section 13(3) is also appealable u/s 18 of the Act to the appellate authority as may be prescribed. 11.A reading of the provisions of the Statute clearly envisages a complaint involving sexual harassment. Section 9also makes it clear that the complaint in writing should be with reference to “a complaint of sexual harassment at workplace”. Further, once the Internal Committee after enquiry arrives at a conclusion that the allegation against the respondent has been proved, it shall recommend to the employer to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent to determine compensation etc. Therefore, when the statute had been framed taking into account various aspects involved in the matter, the complaint should be one relating to sexual harassment. Section 3 of the Act is in the form of a prohibition.
India:
(April 2013) New amendments were carried out in Indian Penal Code for acts relating to sexual harassments against women. Section 354A, 354B,354C, 354D was newly inserted in Indian penal code, especially for the acts which shall be treated as sexual harassments.
According to the section 354A, the following activities by a man shall be treated as sexual harassment against women.
Physical contact and advances involving unwelcome and explicit sexual overtures; or
demand request for sexual favours; or
showing pornography again as the will of a woman; or
making sexually coloured remarks,
will be treated as an offence of sexual harassment on women.
Punishment
For the above said offences the punishment shall be for a period of one to three years of imprisonment or with fine, or both
According to section 354B, any man who assaults or uses criminal force to any women or abets such act with the intention of disrobing (taking off one’s clothes) are compelling her to be naked. For this offence, the punishment shall not be less than three years, but may extended to 7 years, and also shall be liable to fine.
According to section 354C, any man who watches captures images of women engaging in a private act in circumstances where she would usually have the exception are not being observed either by the perpetrator or by any other person. For this offence, the punishment shall not be less than three years, but may extended to 7 years, and also shall be liable to fine.
According to section 354D, the following shall be treated as an offence by a man.
Following a woman and contacts, or attempts to contact such women repeatedly despite a clear indication of disinterest by such women.
Complaint procedure:
Police are empowered to act, or take action against aforesaid offences of sexual harassments on women. Any women facing aforesaid sexual harassments can make a complaint to the police for taking necessary action against the person who commits such activities.
United States
The U.S. Equal Employment Opportunity Commission (EEOC) is an independent federal law enforcement agency that enforces laws against workplace discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, perceived intelligence, disability and retaliation for reporting and/or opposing a discriminatory practice. It is empowered to file discrimination suits against employers on behalf of alleged victims and to adjudicate claims of discrimination brought against federal agencies.Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.
The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.
Location
We carry out our work through our headquarters offices in Washington, D.C. and through 53 field offices serving every part of the nation.
How Do I File a Formal Complaint?
The filing of an EEO complaint follows a number of standard procedures:
You must contact an EEO counselor within 45 days of the last harassing incident. The names and telephone numbers of EEO counselors for your bureau should be posted in the building where you work.
The EEO counselor will listen to your allegations and talk to the other involved parties in order to attempt to reach informal resolution of the problem.
The EEO counselor will also offer you the opportunity to raise your allegations to the bureau head and the Office of the Inspector General.
If the matter is not resolved within 30 days, and the counseling period has not been voluntarily extended, the counselor will inform you of your right to file a formal complaint.
The formal complaint must be filed within 15 days of receipt of written notice of your right to file a formal complaint. Once a formal complaint has been filed, a trained investigator will conduct an investigation into the complaint.
When you receive the investigative file, you will be given the option of either a hearing before an Equal Employment Opportunity Commission Administrative Judge or a final agency decision based on the existing record.
If you elect a hearing, one will be conducted by an EEOC Administrative Judge and a recommended decision will be issued. The Department may accept, reject, or modify the findings of the Administrative Judge.
When you receive the Department's final decision, you have the right to appeal to the EEOC Office of Federal Operations within 30 days or to file suit in Federal court within 90 days of the decision. Remember, it is illegal for the agency to take any retaliatory action against you for filing a complaint of sexual harassment.
Tips:
Legally, the employer will want to avoid any possibility or appearance that the employee’s complaint was disregarded. Respond immediately.
Ethically, the employer will not want to allow such behavior to exist in their workplace.
The trust, morale, and fair treatment of employees is at stake. An employer’s actions send powerful signals about what another employee can expect in similar circumstances.
You may want to consider reposting and reiterating your sexual harassment policies across your whole work place. Let the circumstances guide your judgment.
In all cases, make sure you make and keep complete and accurate documentation. Employees who are unhappy with the results of your investigation may take additional legal action.
