Sexual harassment is getting its due attention as revelations of sexual harassment by politicians, news reporters, actors, and others have surfaced. Employers under New Hampshire, Massachusetts, and federal law have an obligation to prevent sexual harassment in the work place. Employers should take any claim of sexual harassment seriously. However, it would be a major mistake for the employer to “err on the side of caution” and believe the claimant over the accused without performing a proper investigation.
Depending on the circumstances, the employer may want to have an independent investigation done by an outside human resource company. There are several non-attorney companies that can do an effective job in performing a neutral, thorough, investigation to get to the truth of the matter by interviewing the appropriate individuals and making the credibility determinations that are necessary as part of an investigation without taking any shortcuts. Depending on the circumstances, the employer may perform its own investigation when it has a human resource professional on their staff that is well trained in such matters or by speaking with the employer’s employment counsel to obtain such training. The company should consult with its employment legal counsel first to measure whether it is appropriate under the circumstances to have an outside human resource firm perform any sexual harassment claim investigation. I have also found that some human resource companies can later provide valuable training to the employer, both at supervisor and employee levels, in that the supervisors have additional requirements as to what to do when an employee comes to them with a sexual harassment complaint making sure the supervisor knows such basics as: (i) the sexual harassment perpetrator could be male or female targeting an employee of the opposite or same sex; and (ii) the supervisor cannot promise to the employee making the assertion that it will be kept confidential in that the employer has an obligation to keep a harassment-free workplace. It is not just about the accuser’s rights, but all employees’ right to not be abused by an alleged sexual harassment perpetrator.
That being said, “playing it safe” and finding harassment without a proper investigation is a major mistake. If an employee makes a dishonest claim of sexual harassment to keep his job that he knows is at risk due to poor job performance, not only will employee morale of the coworkers be affected, but the employer may enhance the likelihood of that employee or others making unjustified claims in the future. In fairness to all the individuals involved as well as for the financial health of the employer, an appropriate, thorough investigation should be done.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].