In my December 12, 2016 post, I explained that, in New York, hostile work environment harassment involves conduct so objectively offensive as to alter the conditions of the victim’s environment, which is subjectively perceived as hostile or intimidating. Prompt investigation, by companies, of workers’ harassment claims is crucial. This post sets forth guidelines, for employers in New York State, in investigating, reaching a determination on, and taking corrective action as to workers’ hostile work environment harassment claims.
- Talk with counsel before starting an investigation so that any difficult issues may be addressed.
- Investigations should be conducted by two uninvolved managers.
- At least one of the investigating managers should be thoroughly familiar with harassment law and the employer’s harassment policies and procedures.
- One manager should be designated as the interviewer, and the other should act primarily as a witness and take notes on the discussion.
- If the accused is a high level employee, hire an independent investigator.
- Ask the complainant to state what happened and to name any witnesses.
- Have the complainant sign your notes of the account, get a statement in writing or tape the interview.
- Interview the accused and all named witnesses separately.
- Keep the information as confidential as possible and tell employees that they may be disciplined if they breach confidentiality.
- Assess the credibility of the witnesses and determine whether the harassment possibly took place.
- Act on the findings after discussion with counsel.
- If there are conflicting versions of relevant events, the employer must assess each party’s credibility.
- Generally, give the complainant the benefit of the doubt if there is no clear result.
- Credibility assessments can be crucial in determining whether the alleged harassment in fact occurred. Factors to consider include: memory, perception, truthfulness, corroboration (witness testimony and physical evidence) or lack of it, bias of witnesses, consistency, plausibility of accounts, and prior misconduct.
- None of the above-mentioned factors are dispositive as to credibility.
- The fact that there are no eyewitnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, because harassment often occurs behind closed doors.
- That the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.
Reaching A Determination
- Once all evidence is gathered, interviews are completed, and credibility issues are resolved, management should make a determination as to whether hostile work environment harassment potentially occurred.
- Employers should confer with counsel before making a final determination.
- Advise the complainant and the accused of the determination.
- An employer should make clear that it will take immediate and appropriate corrective action, including discipline, whenever it determines that hostile work environment harassment has occurred in violation of the employer’s policy.
- Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not happen again.
- Consider a verbal warning, written warning, denial of bonus or pay raise, suspension, demotion, termination or some combination. Also consider providing harassment training to the harasser and to all employees.
- Even if it is determined that the harassment did not take place, reassignments should be made if feasible – if the complainant has asked for such reassignment – to avoid future encounters.
- These remedial measures need not be those that the complainant asks for or prefers, as long as they are effective.