That Critical First Response to Harassment Complaints: A Checklist

by Zelle LLP

Employers don’t want workplace harassment to occur, but when it does they want to know. Harassment affects morale, distracts from productive work, and can do real damage to its victims.  It’s long settled that ignorance is not a defense to claims of harassment by managers and supervisors. When harassment occurs between equals, the employer may still be legally responsible if it knows or should know and fails to take timely, appropriate action in response.  So almost all employers have policies prohibiting harassment, and many have policies and procedures specifically designed to receive and investigate complaints.
Regardless of the formality of the complaint process, someone in the employer’s organization is the first responder—the initial recipient of the complaint.  That recipient may be an HR professional, in-house counsel, a manager, an owner, a board member, or even someone outside the organization.  Whoever it is, the recipient’s handling of the first contact from a complaining employee is of critical importance.  It reflects and conveys the employer’s attitude about harassment in the workplace.  It encourages (or discourages) the employee from providing complete and candid information. It marks the first step in the employer’s compliance with its legal responsibility to prevent and respond to harassment complaints.  Here are tips that can help shape and manage that critical first response.
  • Be prepared.  Everyone who might reasonably receive a complaint of harassment should have at basic training on how to respond.  Individuals named as complaint recipients in the employer’s harassment policy, or otherwise formally designated as a recipient, should be given written guidelines and instructions.
  • Be prepared, II.  First responders should never act surprised or flustered when they realize they are being told about harassment.  Their response should be calm, friendly, and matter of fact.
  • Be consistent.  Whatever an employer’s procedures for receiving and responding to a complaint of workplace harassment, they should be uniformly followed.  If, for example, the recipient is supposed to make a written record of complaints, the same information should be gathered every time and reduced to writing in the same way.  At the time of first contact, it’s impossible to know how serious or complex a complaint will be; first responders should never dismiss a complaint as unimportant or unworthy of full attention at this early stage.
  • Welcome the complaint and the complainer, but stay neutral.  An employer wants to know about harassment complaints, but must stay neutral until investigation of the complaint is completed.  First responders should always express appreciation for the complaining employee’s willingness to come forward, and may express the employer’s commitment to a workplace free of harassment, but should never take a position about the validity of the complaint.  It’s too early for that.
  • Be prepared for the “anonymous” complaint.  Sometimes, a complaining employee will ask that she or he remain anonymous, or will seek to control how the employer conducts an investigation.  Such expectations are unrealistic and complaining employees need to understand why. Fear of retaliation is usually the driving force behind requests for anonymity and requests to do or not do certain things in the investigation, so an important part of the first responder’s job is to explain that no retaliation will occur—even if the complaint can’t be corroborated. 
  • Promise only what can be delivered.  First responders should tell the complaining employee what will happen next and explain the investigation process, but should never promise a particular outcome. Nor should they promise that the investigation will proceed in a certain way or be completed by a certain time. The course, scope, and outcome of any harassment investigation depends on the facts and circumstances surrounding the complaint, and can’t be known when the complaint is made.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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