I’m writing this article on Jan. 29 and Steve Wynn, CEO of Wynn Resorts in Las Vegas, just became the latest person to be accused of sexual harassment. According to my count, at least 50 men in entertainment, business and politics faced similar accusations in the law few months and many of them lost their jobs as a result.
Wynn resigned his position as finance chair of the Republican National Committee even though he insisted in a statement to NBC News that the accusations against him were “preposterous.”
“We find ourselves in a world where people can make allegations, regardless of the truth, and a person is left with the choice of weathering insulting publicity or engaging in multiyear lawsuits,” Wynn said.
He has a point. Remember the TV show “The Wonder Years” that aired in the late ’80s and early ’90s and starred a teenage Fred Savage? Actress Alley Mills, who played Savage’s mom on the show, recently told Yahoo that the show was canceled because of a sexual harassment lawsuit against then 16-year-old Savage and co-star 20-year-old Jason Hervey. Mills said the suit, brought by a former costumer on the show, was “completely ridiculous” and that ABC settled out of court to avoid a scandal.
“It’s a little bit like what’s happening now — some innocent people can get caught up in this stuff; it’s very tricky. It was so not true,” Mills said.
How do you know which allegations are true and which are not? As someone who investigates sexual harassment (and other) complaints, I know that’s often difficult to determine. However, when you’re an employer, one thing is clear: In general, it’s important that you conduct an investigation before you terminate employees for sexual harassment.
Before you begin an investigation, here are some things to consider:
Do you have a policy that states that sexual harassment is forbidden in your workplace? Even though sexual harassment is against the law, it’s easier for employers to determine that employees violated a policy rather than determining that they broke a law. Terminating an employee for violating policies is also easier to defend in court. (California’s Fair Employment and Housing regulations require employers with five or more employees to have a written policy against unlawful harassment, discrimination and retaliation in the workplace).
Do you have a plan in place for responding to sexual harassment complaints? This would include things like determining when employees should be put on leave or transferred to another location during an investigation.
Is a formal investigation necessary? Many people tend to think that anything that bothers them is “harassment” and creates a “hostile work environment.” While it’s important to take all complaints seriously, ask for specific examples of harassment from a complainant before launching into a full-scale investigation.
Who will conduct the investigation? In her article subtitled “Bad Investigations: A Plaintiff’s Dream; Defendant’s Nightmare,” Maureen S. Binetti said, “A primary source of fodder for plaintiff’s counsel in attacking investigations continues, remarkably, to be the complete inadequacy of the investigator.” Investigators are often inadequate because of their lack of training and/or their relationship to the people being investigated, according to Binetti. It’s usually best to have a trained investigator outside of the organization conduct investigations.
How will the investigation be conducted? Determine things like how evidence will be collected and witnesses will be questioned before taking action. “Mishandled employment investigations can be used by employees as offensive weapons,” said Binetti.
Have supervisors been trained on what to say and do during investigations? Confidentiality is critical during the process and retaliating against employees for participating in investigations is against the law. It’s a good idea to share that information with people in positions of authority.
What will you do after the investigation? If you decide to discipline the accused, how will you determine the appropriate level of discipline? What should you tell the complainant? What kind of documentation should you keep and where should you keep it?
When people complain about sexual harassment, it’s easy to believe the complainant and want to take swift action against the accused. However, the California Fair Employment and Housing Commission states that employers must fully and effectively investigate harassment complaints in order to be in compliance with the Fair Employment and Housing Act (which requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring). Additionally, you don’t want to fire someone who’s done nothing wrong. Therefore, be sure to investigate before you decide to terminate.
Robin Paggi is a training and development specialist with Worklogic HR.