Respectful Investigation of Sexual Misconduct
September 27, 2018
A company’s immediate reaction to sexual harassment allegations should include defining an investigation and communications strategy that takes into account the elevated risk profile of such claims. But a company must also exercise restraint and refrain from taking actions that could actually increase liability.
Businesses have been handling harassment complaints for years. The risk profile, however, has changed. Whether the investigation is managed by in-house or outside counsel, a strategy must be developed that navigates the sensitivities of serious allegations while responsibly maintaining confidentiality. Communications must be carefully crafted according to a strategy that aligns with the overall investigation plan and is implemented from the earliest interactions with the accuser. The first responder must be trained to communicate without creating liability. Companies may consider putting the accused wrongdoer on leave or separating the accused from the accuser during the investigation. If it becomes clear that someone should be fired, consider a number of factors, including the basic question of whether the employee is going to resign or be terminated.
In sum, when a company learns of allegations of sexual harassment or assault by an employee, it must quickly move to investigate while also navigating the pitfalls in providing information both internally and publicly, and avoiding impulsive policies that may undermine the business objectives and create additional legal liability.
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