Do You Need a Lawyer for a Workplace Investigation of Sexual Harassment?

Employers must investigate claims of workplace sexual harassment. Sometimes, employers take other actions during an investigation, such as separating the employee claiming harassment from the alleged harasser or placing the alleged harasser on leave. If you are either the employee claiming harassment or the employee who is alleged to have engaged in harassment, you may benefit from legal advice during the investigation.

How Can a Lawyer Help During an Investigation?

Allegations of sexual harassment are very serious, regardless of the outcome of the employer's investigation. Employers are, at times, reluctant to conduct as in-depth an investigation of harassment as they should; sometimes they blame the employee alleging harassment and punish him or her. Other employers choose to just discipline or fire the alleged harasser, without properly investigating to confirm that he or she actually engaged in harassment. An experienced employment lawyer can help the victim of harassment and the alleged harasser through this process.

Assisting the Employees Involved

An employee reporting harassment can feel very alone in a difficult, even hostile, process. And, the employee may not know his or her rights or have the confidence to assert them.

An employee who is named as a harasser may be treated as a pariah even before any investigation is done. An employer may blow off a fair investigation and just demote or fire the alleged harasser, without a real inquiry into what happened.

Each of the employees involved can benefit from the advice of a skilled employment lawyer.

Making sure the investigation is thorough and fair

Employees who report sexual harassment to their employers often receive a cold shoulder, or worse. An experienced employment lawyer can assist the sexual harassment victim in persuading the employer to conduct a thorough, good faith investigation of the alleged harassment. This is what the law requires, and a lawyer can hold the employer to that obligation.

The alleged harasser also wants the employer to investigate the harassment claims objectively and fully. A "white-wash" that just blames the named harasser is not fair and can result in serious negative repercussions for the employee charged. So, an employee named as a harasser can definitely benefit from the advice of a lawyer throughout the investigation process.

Preventing and/or addressing retaliation

Some employers go so far as to discipline or otherwise retaliate against an employee who reports harassment. An employment lawyer can step in if the employer takes such actions against an employee reporting harassment.

As for the employee charged with harassment, an employer may decide to separate the alleged victim and the alleged harasser. This may mean that the alleged harasser is inconvenienced (by being physically moved to a remote location, for example) or even suspended from work during the investigation. While such actions are legal and may be appropriate in certain circumstances, an employer cannot act arbitrarily in punishing an alleged harasser before the investigation is concluded. With the advice of an experienced employment lawyer, the employee charged with harassment can make sure any actions taken by the employer are fair and justified.

Ensuring that the investigation results are fair

Both the alleged victim and the alleged harasser need to know that the determination made by the employer after the investigation is fair and objective. Each of these employees needs their own lawyer to analyze the report of the investigation to make sure that:

• the employer retained an objective person to conduct it,
• the investigator examined all of the evidence (that is, spoke to any witnesses, reviewed any documents such as emails or notes, and properly questioned the employees involved), and
• the conclusions of the investigator are justified by the information discovered in the investigation.

If the lawyer for either the victim or the alleged harasser believes that the investigation results are not supported by facts or that the investigation was flawed, the lawyer can advise the employee as to steps to take in response.

Preventing or addressing repercussions from the investigation

After an investigation, regardless of the findings, the employer must take appropriate action. If the investigator found that harassment occurred, the employer must take effective action to address what happened (such as disciplining the harasser or assigning the victim to a different manager) and to prevent it from happening again.

In no event can the employer retaliate against the reporting employee. If the employer finds that the reporting employee made an intentionally false report of harassment, the employer may discipline the employee. An experienced employment attorney can monitor the employer's actions after the investigation is concluded to make sure the reporting employee is treated fairly.

If the investigation clears the alleged harasser, the employer should not take adverse action against him or her. If the employer disciplines or fires the employee, the employee may have a legal claim against the employer for wrongful termination. The employee's lawyer can advise the employee of his or her rights after the investigation and help protect them.

An employer who calls an employee a harasser after he or she has been cleared by an investigation may be defaming that employee. An experienced employment lawyer can advise the employee of the actions he or she can take in response to possible defamation by the employer.

Know Your Rights—And Protect Them

Regardless of whether you are the victim of harassment or the alleged harasser, you should talk to an experienced employment lawyer as soon as possible. Rest assured that your employer has legal counsel offering advice throughout this process, and you should too.