5 Ways to Strengthen Your Anti-Harassment Complaint Process

No complaints doesn't mean no harassment. Here's how to build trust in your reporting procedures.

By Jonathan A. Segal March 22, 2018
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Leaders at many organizations are taking a fresh look at their strategies for preventing and addressing sexual harassment in the wake of the #MeToo movement. As you revisit your policies, don’t forget to also fine-tune your complaint procedures. Without a robust process that employees can trust, an anti-harassment policy has little value. 

1. Make Clear Who Can Bring Complaints

Complaint procedures should not be limited to employees who have experienced harassment. Workers who witness inappropriate conduct should be able to file grievances as well. 

Be clear that workers can report harassing conduct that is not unlawful. One stray comment that degrades another’s gender may not constitute illegal activity, but that doesn’t mean such remarks should be tolerated in the workplace. As with your anti-harassment policy, your complaint procedure should focus on defining behaviors that are unacceptable and therefore prohibited at your company.

Both your anti-harassment policy and your complaint procedure must apply to racial, ethnic, religious and other forms of harassing conduct beyond just that of a sexual nature. Also, make it known how your policies apply to discrimination, retaliation and failure to accommodate.

2. Have Multiple Points of Contact

If you want your complaint procedure to be effective, don’t require employees to report their concerns only to their supervisor. After all, a manager may be the person engaging in the conduct the worker is complaining about.

At a minimum, give employees the opportunity to consult with supervisors or someone in HR. And contemplate further broadening the pool of potential points of contact to include other managers and leaders. 

Consider offering anonymous reporting services from an independent third party, similar to the hotlines public companies provide for whistle-blowers.

If you use an external vehicle, think about who the complaints should be routed to internally. It’s a good idea to have reports sent to multiple employees, since the grievances could get buried if there is just a single point of contact.

3. Detail What Constitutes Prohibited Conduct 

Flesh out what you mean by unacceptable harassment in the workplace. There are three key points you should make here:

The conduct giving rise to the complaint can occur not only in the workplace but also at company-sponsored business and social events. Indeed, make clear that the same rules apply to events entirely unrelated to the workplace, such as an employee pursuing a romantic relationship with a co-worker by calling him or her at home. 

The behavior at issue need not be exhibited by an employee. Workers can raise concerns about harassing behavior from customers, vendors and suppliers.

Harassment via social media, e-mail and text messages are all within the scope of prohibited conduct. Yes, even a post on an employee’s private Facebook page can be cause for corrective action if it is about co-workers, business partners or customers, or if those parties can see it. 

4. Provide Robust Protection Against Retaliation 

The main reason employees typically refrain from reporting harassment is fear of retaliation. The complaint procedure should set the foundation for a culture that does not tolerate reprisal of any kind.

Here are three pieces of advice for how to achieve that:

Do not limit the protection to the person who makes the formal grievance. It should also apply to witnesses, others involved in the investigation and those associated with the complainant, such as a spouse. 

Do more than simply prohibit retaliatory adverse employment actions, such as a discharge. You should also bar any material changes to the terms and conditions of employment made in response to a complaint; examples include a change in assignments, ostracism by other employees and bad-mouthing an employee in the professional community. 

Make sure you spell out, in training and in investigations, that even if a complaint lacks legal merit, it is not OK to engage in retaliation. The courts are flooded with cases where employees’ harassment complaints were initially dismissed but the judges later ruled that the ensuing retaliation claims had sufficient merit to proceed to trial.

5. Take Strong Corrective Action

Communicate that prompt and proportionate corrective action will be taken if your company concludes that an employee or any affiliated client or customer has engaged in inappropriate conduct, whether or not the behavior meets the legal definition of harassment. For this statement to have teeth, the corrective action must include discipline up to and including termination of employment or another relationship. The reference to “another relationship” is important because the wrongdoer may not be the company’s employee. 

Some employers go further and state that the complainant will be told the nature of any corrective action taken against the harasser. Think twice before committing this to policy, though. Certainly, there will be instances when you will want to disclose this information, but you might not want to lock yourself in to doing so. Circumstances vary. But your tolerance to harassment should not. 

Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City, and a SHRM columnist. Follow him on Twitter 
@Jonathan_HR_Law.

Illustration by Adam Niklewicz for HR Magazine.



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