Innocent Until Proven Guilty? Not in the Workplace: What Every Employer Needs to Know About Handling Sexual Harassment Complaints
The #MeToo movement has taken an interesting turn. When Harvey Weinstein was first accused, it’s hard to remember anyone who came to his defense. The collective outrage against him was swift and furious, and the public immediately demanded his job. Weinstein was fired from his own company three days later and has been a pariah ever since. But when Matt Lauer was accused, the reaction was different. By the time the story broke, Lauer had already been fired, and many saw him as the victim of a bandwagon smear campaign. “Allegations ONLY,” one person tweeted. “I guess guilty until proven innocent is the new norm.”
In reality, the claims against both men are “allegations ONLY”. Innocent until proven guilty is a standard for criminal trials, not workplace investigations, and neither has been adjudged in a court of law. Both companies had every right to terminate the men over allegations and, in fact, may have even had a legal duty to do so. But the confusion raises an important issue for employers faced with similar complaints: How much proof do you need to take action, and are “allegations ONLY” enough?
First of all, it’s important that employers understand their responsibility under the law. Employers have a duty to prevent and stop sexual harassment that they knew or should have known was happening in their workplace. From a prevention standpoint, courts have held that employers may satisfy their responsibility by posting and informing employees of the company’s anti-harassment policy. When an employer hears about possible sexual harassment, it has a legal obligation to thoroughly investigate the claim. This duty extends to claims from any source, including gossip by other employees or instances of witnessed questionable behavior.
The law doesn’t dictate exactly how to conduct a workplace investigation, but there are a couple of solid tenets to keep in mind to ensure an effective and meaningful outcome. First, encourage employees to report any type of misconduct and guarantee them that they will be safe from retaliation. If they have already experienced any type of retaliatory action, make sure that they inform you immediately so that you can take steps to address it. Interview both the accuser and the person accused along with any potential witnesses who have knowledge about the situation. Ask open ended questions that seek facts to support or disprove the employee’s allegations and document the interviews thoroughly.
When you have gathered all of the information, use your best judgment to make an unbiased decision based on all of the facts. The allegations need not be proven beyond a reasonable doubt, but any disciplinary action should be supported by facts and consistent with the company’s discipline policy. While you are not required to terminate a person accused of sexual harassment, you are required to put a prompt and effective stop to it. Whatever your discipline, make sure that it not only addresses the alleged harassment, but that it sends a clear message to the company that such conduct will not be tolerated.