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Investigations: Essential For Reducing Family Employer Exposure To Sexual Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) is suing a Michigan home improvement chain for allegedly allowing an assistant manager to sexually harass female employees for a year without being disciplined.

The sexual harassment lawsuit alleges that a female employee at the store showed the hardware department manager a pornographic text message sent to her by the assistant manager. She told the manager that she did not feel comfortable working with the assistant manager.

The department manager allegedly failed to cause an investigation and instead told the assistant manager "not to dip his pen in company ink."

Almost a year later, another female employee allegedly reported that the same assistant manager had sent her a pornographic message. According to the allegations in the lawsuit, the department manager again did not investigate or cause an investigation after she reported the sexual harassment to him.

The assistant manager continued to sexually harass female employees by sending them pornographic messages and touching them inappropriately, the EEOC alleges.

A third complaint was made directly to human resources around a year and a half after the first sexual harassment complaint. At this point, the employer investigated the assistant manager, who admitted to sexually harassing the women. The employer terminated him.

The EEOC is suing the employer for violating Title VII of the Civil Rights Act of 1964. "EEOC Sues Menard, Inc. for Sexual Harassment" (May 20, 2020).

Commentary and Checklist

Lack of a prompt, impartial, and thorough investigation can create liability. If a family employer receives a report of harassment or discrimination and fails to immediately investigate or cause a third-party investigation, that employer is inviting liability. When a report of sexual harassment is made, an employer has a duty to investigate, no matter who makes the report and no matter who the report is about.

Encourage staff to report harassment and discrimination by creating an easy-to-use, safe reporting mechanism and training staff annually on how to report. Provide ways for staff to report up-the-chain or to a third party, whichever is most comfortable for them.

Here are some tips regarding investigations:

·      Most family employers because of their small size should consult with their legal counsel when an investigation is needed so that counsel can help them find an appropriate third-party investigator.

·      It is not advised to use your own legal counsel to investigate because should there be litigation in the future, your counsel would have to appear as a witness to testify about the investigation, creating a conflict of interest that could result in counsel withdrawing from his or her representation of you.

   •      Select a trained investigator. Make sure the investigator has the ability to be objective, calm, courteous, and professional. The investigator should understand the law regarding harassment and the elements of proof.

   •     Manage the investigation with discretion, but do not promise confidentiality to the parties involved because certain disclosures may need to be made, on a business need to know, in order to complete the investigation.

   •     Document all interviews and subsequent actions. Notes from all interviews should be recorded at the time or shortly after the interview and reviewed with the interviewee for accuracy.

   •     Respond appropriately to the facts contained in the investigator’s written report in a manner that reflects your commitment to a harassment-free workplace.

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