Investigating Sexual Harassment Complaints Part I: General Considerations

Scott F. Uhler and Rinda Y. Allison

Investigation of sexual harassment complaints should always be swift, thorough, fair, completely documented and confidential to the extent possible. The discussion which follows addresses investigation of an employee's complaint of sexual harassment, but with modifications can be used for a patron complaint as well, whether brought against an employee or an administrator. The principle that swift response and thorough investigation of complaints with appropriate remedial action taken will help to shield a library from liability is applicable to patron harassment claims as well as to employee harassment claims. The most important thing for library personnel is to be aware of what is happening in the building and react to reports and complaints. Ideally, a library will create a climate in which sexual harassment cannot flourish because everyone knows it will not be tolerated and anyone guilty of it will be disciplined accordingly.

An employer may respond to a claim of employee sexual harassment in different ways.

Example 1. A female employee complains that her supervisor sexually harassed her by playing with her hair, hugging her from behind, rubbing her with his hands and pressing his genitals against her. She makes this complaint to her supervisor's boss and asks for reassignment. The boss responds, "Well, I have to be fair to him, too," does not reassign the employee and appears to take no action. The supervisor's harassment continues and intensifies, and the employee sues. The court found that if the harassment is proven, not only may the employer be held liable, but the supervisor and his boss may also be held individually liable. Icampo v. Hasbro, Inc., 929 F. Supp. 562 (D.R.I. 1996).

Example 2. A female employee was harassed by a co-worker who frequently made comments of a sexual nature to her. He said to her one day when she had an upset stomach that she was "screwing around" with her boss so much she was probably pregnant. He repeated that comment to other employees and said to a group of employees talking about a baseball pool that the female could pay for her bet "in trade." The female complained to her supervisor, who told her to ignore the co-worker because he was just a barroom bully. The supervisor did forward the complaint and within 10 days a meeting was held with the female, the supervisor and others. It was agreed that management would insure that the co-worker stayed away from the female (he did) and a memo would be issued to all employees regarding management's policy against sexual harassment. The court found this a reasonable and effective response, which protected the library from liability for sexual harassment. McKenzie v. I.D.O.T., 92 F.3d 473 (7th Cir. 1996).

Sexual harassment complaints are inherently difficult for an employer to resolve. The employer is put into the nearly impossible position of evaluating conflicting stories with few or no third party witnesses. The employer bears responsibility for competing interests: the interest of the complainant in attempting to rectify inappropriate or harmful conduct; the interest of the accused in maintaining innocence and reputation; and the interest of the employer in protecting itself from potential liability for failing to remedy any sexual harassment that occurred. The employer must, therefore, promptly respond to a complaint with tact and confidentiality.

Finally, at the conclusion of the investigation, the employer must determine whether the complaint is true, untrue or lacking verifiable evidence. If sexual harassment occurred, the employer must discipline the offending employee and create an effective remedy that will prevent the harassment from recurring. If the complaint is found to be untrue or un verifiable, the employer must lay the matter to rest and provide an environment in which the accuser and the accused can continue to function as effective employees.

This article offers structure for an effective sexual harassment investigation in the employment context, and identifies concerns that will impact the employer's course of action during the investigation. This article does not attempt to address claims brought by library patrons, but can be used, with appropriate modifications, in that context as well.

110

The employer's interests in conducting an adequate investigation

A library faced with a sexual harassment complaint should focus on the following actions:

1. eliminating the likelihood of continuing harassment

2. protecting the reputations of both the complainant and the alleged harasser throughout the investigation; and

3. initiating/conducting a thorough, well-documented investigation.

These actions reflect the multiple vulnerabilities of the library. It must protect itself from claims that it condones or encourages harassment by taking prompt, remedial action. It must protect itself from potential charges of defamation brought by the subject of an investigation. Finally, it must seek throughout the investigation to protect the reputation and credibility of the accused so if the charges are found to be untrue or unverifiable, the accused can continue as an employee.

Employment discrimination law recognizes two-types of sexual harassment—quid pro quo and hostile environment. Quid pro quo harassment occurs when a person in a supervisory position demands sexual favors in return for continued employment or advancement. Hostile environment harassment occurs when harassing conduct has the effect of interfering with an individual's work performance. Typically a single instance of quid pro quo harassment is actionable, while hostile environment harassment generally requires more continuous harassing behavior.

Under federal employment discrimination law (Title VII), an employer will not be held liable for sexual harassment due to hostile environment (as opposed to quid pro quo) where it can show it took prompt remedial action reasonably calculated to end the harassment. (This principle is not true under the Illinois Human Rights Act, which has been interpreted to hold an employer strictly liable for sexual harassment by its supervisory personnel. Board of Directors v. Human Rights Commission, 162 Ill.App.3d 216 (5th Dist. 1987).

"Prompt, remedial action" requires an employer to actively seek corroborative evidence of both parties' statements. Courts have found that an adequate investigation requires interviews with employees who were identified as, or due to proximity, etc. were likely to be, witnesses to the harassment, as well as with the complainant and the accused. In addition, other complaints of sexual harassment against the accused (or other complaints of sexual harassment filed by the complainant) may be considered relevant when determining the seriousness of the current complaint.

Maintaining confidentiality

In addition to being thorough, the investigation should be kept as confidential as possible to protect the employer from claims of defamation or invasion of privacy. A charge of sexual misconduct is by its nature injurious to reputation. However, an employer is entitled to discuss such matters when responding to a complaint or an observed problem in the workplace, and has a "qualified privilege" that protects a person making otherwise-defamatory statements in good faith for a proper purpose (as in a sexual harassment investigation) to persons who have a legitimate interest in or a duty to receive the information. Under this definition, statements made maliciously or recklessly are not entitled to the privilege.

To protect its qualified privilege, the library should not disclose any statements to anyone other than persons directly involved in investigating the complaint. Generally, two investigators are adequate to conduct an investigation involving several witnesses. The evidence acquired in the investigation should not be disclosed to secretaries or other support staff (unless, of course, they are involved in the investigation as a witness, complainant or alleged harasser, or their support services are needed. In the latter case they should be admonished to keep the information confidential).

Despite the importance of maintaining confidentiality, however, a library cannot promise absolute confidentiality to anyone in the investigation. State or federal law, or a disciplinary proceeding resulting from the investigation, may require disclosure of information provided during the investigation and its source. A library need not be overly concerned with its inability to guarantee confidentiality, for it can assure a witness that, as required by state and federal law, an individual who files a sexual harassment complaint or who provides information regarding an incident may not be subjected to retaliation for those acts. This assurance will be sufficient for most situations. Further, information may be more accurately stated when the individual providing it knows that at some point it may be subject to challenge by another knowledgeable source.

Finally, confidentiality will require the investigator to exercise discretion in questioning third-party witnesses to the alleged harassment. It is clear that if a person is identified by the claimant or the alleged harasser as a witness to the incidents of harassment, that person should be interviewed. During the interview, however, the investigator should carefully phrase the questions to avoid unnecessary accusatory or revealing statements about either party.

111

Recieving Complaints

An adequate sexual harassment policy, one that defines sexual harassment, states the possibility of discipline, and identifies the manner in which complaints should be made, should already be in place and available to employees. The policy should designate at least two individuals to receive complaints in the event that one may be the alleged harasser. Because of the fact that the majority of complaints of sexual harassment are made by women against men, it is preferable for one of the individuals named to be female. For this same reason, this article refers to a potential complainant as "she," and the accused as "he," with the understanding that these roles will sometimes be reversed. The complaint policy should encourage individuals to make timely complaints so that an effective investigation can be conducted. The policy should establish a procedure by which complainants set forth their complaint in writing and provide factual information about the incident of harassment. The written complaint should provide the basic facts of who, what, when, where, why and how. A written complaint will almost always justify an investigation.

Some complaints may appear to be entitled to little weight, for example, anonymous reports, verbal complaints the complainant refuses to put in writing, or complaints of an event that occurred far in the past. In most instances, the fact that an individual refuses to accept responsibility for a statement that another person has engaged in serious misconduct makes that statement suspect. However, an employer who ignores a complaint of sexual harassment for the sole reason that it is not brought in accordance with the policy may do so at its own peril. If, for example, an anonymous report is accompanied by independent verifying evidence of harassment, an employer may be responsible for responding to that evidence.

A complaint regarding an incident that occurred far in the past may indicate that harassment is occurring in the present as well. The proper way to handle a non-conforming complaint is to record it, note any deficiencies that entitle it to less credibility, and pursue an investigation based on whatever evidence has been made available to the investigators. The more prudent policy is to pursue every complaint, even if it appears to be baseless. If the complaint is groundless, it will not stand up to the close scrutiny of a thorough investigation.

A criminal complaint will justify an independent library investigation if it bears a nexus to the employee's job performance. A nexus is present if the employee's conduct is work-related; by definition, a criminal complaint based on conduct that qualifies as sexual harassment of a co-worker is work-related. The library is then faced with the choice of relying on the criminal process or proceeding with its own investigation. There are several good reasons for the library to proceed independently. The criminal process is slow, and during that time the employee will either continue to be present in the workplace or will be either drawing a salary on a suspension with pay or accumulating a possible back-pay claim if suspended without pay. In addition, a criminal complaint is subject to a higher burden of proof than the library's disciplinary proceeding and, therefore, the possibility the employee will be acquitted of the charge is very real. At that point, the evidence on which the employer could base an independent disciplinary action may be stale or wholly unavailable.

If an employee is subject to both disciplinary and criminal proceedings, he will in many cases refuse to answer questions on the basis that it may incriminate him in the criminal proceeding. This concern is addressed below in the section on interviewing the alleged harasser, found in Part II of this article.

Library administration designates individuals to investigate the complaint. The perfect investigator will have (or, almost as important, will appear to employees to have) the following characteristics:

• neutrality

• objectivity

• competence

• proper training

• good interviewing skills

• credibility and effectiveness as a witness if the library's investigation is challenged

It is paramount that the investigator be impartial, objective and presume the innocence of the accused throughout the investigation. If the complaint is found to be untrue or unverifiable, a respectful attitude toward the accused by the investigator and the administration (because, despite every effort to keep the investigation confidential, a sexual harassment complaint will be the subject of numerous workplace conversations) will help preserve his reputation and his ability to continue working for the employer. Likewise, at least to some degree, the attitude of the investigator will appease the feelings of the complainant, at least towards the library itself. If the complaint is found to be valid and discipline is imposed, an impartial investigation will more likely be upheld in the event the disciplined employee causes it to be placed under the scrutiny of a reviewing court.

The second part of this article addresses specific steps involved in conducting an investigation and reaching a conclusion about alleged sexual harassment.

112