With the advent of the Me Too Movement and the extensive number of harassment complaints that have been played out in the public forum by the news media, an Employer, on a daily basis, can be confronted with an internal harassment complaint that requires prompt and accurate action by the Employer. Since the Complaint allegedly purports to represent an allegation of wrong-doing in the workplace, it may lead, if not handled correctly, to costly and time consuming litigation as well as potential workplace morale problems and/or issues. This article will attempt to address the potential mistakes that an Employer can make when they receive an internal harassment complaint.

1.  Bringing the Complainant and the Accused Together for Discussion.

When an individual raises a Complaint of being harassed in the workplace, the worst thing that can happen is that that individual is placed in the same room with the alleged harasser and asked to discuss the incident. Under no circumstances should the Complainant and the alleged harasser be brought together for a “clearing the air meeting”. The Complainant should be requested and required to reduce the complaint to written form and the alleged harasser should be independently met with and advised of the facts and circumstances of the Complaint and also be required to submit a written statement. These written statements become a crucial part of the investigation and also the protection for the Employer if, at a later time, the “complaint changes”.

2. Make Certain that in the Written Statements of the Complainant and the Alleged Harasser, that they Provide Concrete and Clear Information with Regard to any Potential Witnesses.

These potential witnesses, and each and every one of them, should be interviewed by the Employer and, as well, make written statements that become part of the investigation. Make sure to ask each witness to provide the names of additional witnesses who could have observed any events. This will also help to substantiate that a “full and complete investigation” has taken place. Failure to interview a potential witness will often negate the benefit of the “Business Judgment Rule” under which a Court will defer to the Employer’s determination with regard to the resolution of an internal Complaint if it is done fairly.

3. Gather Any and All Relevant Information.

This will Include Emails, Personnel Files, Security Camera Footage, Text Messages and Maybe even Messages made on Outside Social Media Accounts.

When interviewing the Complainant, the alleged harasser and any potential witnesses, information of their postings on social media accounts should be inquired into and gathered. These social media posts may be very crucial to the investigation and resolution of the Complaint.

4. Inform the Complainant and the Accused of the Outcome.

Regardless of what occurs in the investigation, it is an absolute necessity for the Employer to inform both the Complainant and the Accused of the outcome of the investigation. It is strongly recommended that this advice of the outcome be done in written form to both parties and that those documents be retained as part of the internal investigation materials. This information about the outcome of the investigation should be clearly communicated to both the Complainant and the Accused even if the Employer deems the Complaint to be unsubstantiated.

5. Complainant’s Goal in Filing Complaint.

It is extremely important that the Employer find out from the Complainant the “objective” that the Complainant has in filing the Complaint. Does the Complainant wish to remain in the employ and be transferred to a different department? Is it appropriate, based on the investigation, to move the accused to a different department or business location? While the Employer does not have the responsibility of abandoning the ultimate decision to be made in a case to the Complainant to avoid “legal Liability”, making the Complainant a participant in the resolution of the matter may establish that the allegations have been taken seriously.

While most Employers will be extremely concerned (and not necessarily thrilled) with regard to the filing of a new Internal Harassment Complaint, this does not mean that the Complaint should not be fully and completely addressed in-house rather than in a litigation scenario. Employers should take Internal Complaints seriously and put themselves in the best position to minimize exposure and liability.

Questions? Contact attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.