Sexual harassment in the workplace is prohibited by both New Jersey’s Law Against Discrimination (NJLAD) and federal law (Title VII of the Civil Rights Act of 1964). In fact, employers have a legal obligation to their workers to take steps to protect them from all forms of workplace harassment. This includes establishing preventive measures to help minimize sexual harassment and other workplace misconduct, putting a system in place to allow employees to report harassment, and implementing remedial measures when harassment is reported.[1] When an employee reports harassment to HR, the employer has a responsibility to adequately investigate the allegations.[2]
Although there are no legal requirements for workplace harassment investigations, the federal U.S. Equal Employment Opportunity Commission (EEOC) has issued numerous guidances on developing successful anti-harassment protocols in the workplace. Although these are not legally binding, they outline what the EEOC looks at when it investigates complaints of harassment in the workplace. In “Promising Practices for Preventing Harassment,” the EEOC suggests that one of the best practices for eradicating workplace harassment is for employers to establish a simple, effective harassment complaint system. This system should identify the individuals to whom employees should report such behavior (e.g., individuals in HR or management) and properly equip those responders to receive, investigate, and resolve complaints. The ideal process allows HR to swiftly respond to complaints while documenting every step of the investigation and resolution.
A typical HR investigation will start with gathering documentary information, including a copy of any written complaint(s) made by the employee, the organization’s anti-harassment policy if it has one, and all relevant portions of the personnel files and/or company records of the complainant and the alleged harasser. Then, the HR investigator(s) will likely conduct interviews with the complainant, the alleged harasser, and any other individuals who might have knowledge of the facts surrounding the allegations.
The interviewer will likely ask you to provide as much detail as possible about the incident or incidents of harassment, asking open-ended questions, allowing you time to provide details, and asking follow-up questions to elicit details you may not realize are relevant. You may also be re-interviewed once HR completes the interviews of other witnesses and the alleged harasser in order to answer any follow-up questions and address any other issues that may have arisen during the course of the investigation. HR will likely make audio or video recordings of your statements.
You may be surprised to learn that because of workers’ rights under the National Labor Relations Act, HR is not permitted to impose confidentiality restrictions on interviewees unless specific circumstances make it necessary. Examples of circumstances that courts have found to necessitate confidentiality include when (1) witnesses are in danger; (2) there is a danger that evidence may be tampered with or destroyed; (3) there is reason to believe testimony is at risk of being fabricated; (4) there is a need to prevent a cover-up; or (5) any other similar serious threat.[3]
Even if the circumstances don’t justify keeping the investigation confidential, investigators will likely take steps to reduce the risk of witnesses talking to each other about their interviews or the investigation itself. This is because talking about the facts or sharing information may alter people’s recollections and complicate the ongoing investigation. HR can ask for voluntary discretion on the part of each person being interviewed as long as the investigator does not threaten the interviewees with adverse employment consequences. The investigator may also use tactical techniques such as scheduling interviews close in time to each other to reduce the chances of employees or witnesses gossiping or sharing information.
The law protects complainants and witnesses from suffering adverse consequences as a result of their complaints of harassment. Your employer has a duty to protect you from retaliation during the investigation, which often includes taking steps to separate you from the alleged harasser. Your employer may work with you to determine how to best accomplish this; solutions may include allowing you to report to a different supervisor or work an alternate schedule. These steps help prevent interactions that could potentially lead to additional harassment or retaliation claims.
At the end of a thorough, complete investigation, the HR investigator should issue a written report summarizing the findings and making conclusions about the veracity of the claims.[4] If your allegations of wrongdoing are substantiated, your employer should take appropriate disciplinary measures against the harasser. What is “appropriate,” however, may range from a verbal warning to termination, depending on the behavior in question. The company may also take steps to refine or improve the company’s sexual harassment policies and training to prevent similar occurrences against you and other employees going forward.
If your company is subject to Title VII of the Civil Rights Act, you also have the right to file a discrimination complaint with the EEOC. Although you do not need an attorney to do so, an experienced attorney can help you compile your case and present it most favorably to the agency. Don’t wait, however. In most cases, you have 180 calendar days from the date of the discriminatory activity to file a discrimination charge with the EEOC. You may also have a cause of action under the NJLAD.
If you think you’re being sexually harassed or discriminated against at work, the experienced employment lawyers at the Mark Law Firm can help you evaluate your options. Contact us today to make an appointment at any of our convenient locations.
[1]Lehmann v. Toys R Us, 132 N.J. 587 (1993) (an employer can be liable for the sexual harassment of its employees in two ways: (1) for negligence or recklessness in failure to remediate the harassment; or (2) vicariously liability for the acts of its supervisors).
[2] Aguas v. State, 220 N.J. 494, 512 (2015).
[3] Banner Health System D/B/A/ Banner Estrella Medical Centers, 362 NLRB No. 137 (June 26, 2015), affirmed in part and reversed in part by Banner Health Sys. v. Nat’l Labor Relations Bd., 851 F.3d 35, 44 (D.C. Cir. 2017).
[4] Papp v. MRS BPO, 2015 WL 5247005, at *10 (D.N.J. Sept. 9, 2015).