We are a small organization with just 18 employees. An employee recently reported that her coworker is always talking about sex to her. I know we have a duty as the employer to investigate, but who should do it?
Yes, when a report of possible sexual harassment is made, a duty arises for the employer to investigate the matter to determine the facts and to fashion an appropriate response, based on those facts. An investigation should be prompt, thorough, and objective. Small business owners like you often hire a third-party investigator because there is no one qualified in the organization to conduct an investigation and/or because of the size of the organization, there is no one who would be viewed as sufficiently objective.
Speak to your organization's local legal counsel. He or she can recommend a third party investigator. It is not a good idea to have your organization's local counsel investigate because should the matter escalate someday into a lawsuit, your counsel would then have to be a witness in the matter as to how the investigation was conducted. This would mean your organization's counsel would then have a conflict that would preclude continuing representation of your organization in the matter.
Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.
If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to firstname.lastname@example.org. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.