Question:

I recently promoted a male employee to operations manager at my small business. I selected the employee instead of several male colleagues, who now report to him. Less than a month after the promotion, one of the operations manager’s direct reports complained that the new manager had sexually harassed him. My operations manager has a spotless record, is essential to my business, and has received only compliments from my clients and me. I cannot believe that he would sexually harass anyone, much less another guy. What are my obligations for responding to this complaint?

Answer:

Statistics reveal that more men are coming forward to speak out against sexual harassment in the workplace. Though female claimants still file a majority of harassment cases, males also can be the victims of unwanted attention or inappropriate behavior. While not as highly visible as some cases filed by their female counterparts, more and more sexual harassment cases involve male employees. New harassment complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC) show that the percentage of sexual harassment charges filed by men doubled from 8 percent to 16 percent between 1992 and 2008. In 2009, male employees were responsible for nearly 20 percent of the sex-related claims filed with the EEOC. Some of this increase is due to reports of men harassing other men.

The complaint involving your new operations manager should be handled in the same way any complaint of harassment should be handled. Any employer who becomes aware of harassment in its workplace is required by California law to take “immediate and appropriate corrective action” to end the harassment. Despite the confidence an employer may have in a key employee, such as your operations manager, an employer has a legal obligation to thoroughly investigate the allegations. This means that once an employer is on notice of alleged sexual harassment—either because of a complaint or because of something a manager witnessed or was told—the employer must promptly investigate and take immediate corrective action reasonably calculated to stop the current harassment and to deter future harassment.

While there is no specific set of steps an employer is required to take in response to a sexual harassment complaint, “immediate and appropriate corrective action” requires that the employer investigate the harassment complaint. In Silva v. Lucky Stores, the California Court of Appeal defined the essential elements of a fair investigation:

  1. use a trained, uninvolved investigator who will ask relevant, factual questions of both sides;
  2. maintain confidentiality of the investigation to the extent possible;
  3. provide the accused ample opportunity to present his/her position;
  4. and
    carefully consider the evidence presented by both parties as well as any percipient witnesses.

In deciding who should conduct the investigation, consider in-house human resources personnel, outside counsel, or a licensed third party investigator. The choice depends largely on factors such as the skill, experience, and training of in-house personnel; the nature and extent of the alleged wrongful conduct; the relationship between the accused and the in-house personnel; and the employer’s budget, to name a few. The requirement that an employer take “immediate and appropriate corrective action” in response to a harassment complaint means that the employer must follow its own policies regarding harassment complaints, and promptly respond to complaints.

Despite the challenges presented in your scenario, conduct an impartial investigation and follow up on the results. Take steps to make sure the employee who made the complaint is protected from any form of retaliation or further harassment. Ensure complete and accurate documentation. Assure that no further incidents occur by following up and documenting the follow-up with the employee who made the original complaint. There may be no facts or witnesses that corroborate a complainant’s claims, and your investigation may indeed result in a “he said/he said” situation. Make work or assignment setting adjustments fairly where necessary for the comfort and productivity of all. If the investigation reveals that harassment occurred, provide the appropriate discipline to the appropriate people, based on the findings of the investigation, up to and including termination. Also consider providing training regarding discrimination and harassment in the workplace to all employees, and reposting and reiterating the company’s sexual harassment policies.
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