How to Address a Complaint about an Unknown Harasser
Author: Beth P. Zoller, XpertHR Legal Editor
Workplace harassment is a serious issue that must not be taken lightly even when the complainant does not know the source of the harassment and the harassing conduct is anonymous. In fact, anonymous harassment poses challenging issues for an employer as often the employer may not be able to identify the harasser, impose discipline and/or fully satisfy the needs of the complainant by putting an end to the harassment. Still, it is necessary for an employer to do everything in its power to address the anonymous harassment since an employer may face legal liability if it knew or should have known about the harassment and failed to take prompt and reasonable measures to remedy and/or prevent it. In order to address anonymous harassment, an employer should follow these steps:
Step 1: Recognize that the Employer May Be Liable for Letting Anonymous Harassment Create a Hostile Work Environment
Hostile work environment harassment is defined as any unwelcome conduct based on an individual's membership in a protected class that is sufficiently severe and pervasive to alter the terms and conditions of employment and create a hostile work environment. In today's workplace, harassment may be verbal, written or digital and include emails, cyberbullying, harassment and threats through social media channels. Anonymous harassment may involve notes, graffiti, telephone messages, emails, social media messages or other conduct aimed at intimidating and harassing an employee based on a protected classification. It does not matter whether the employee and/or the employer does not know the source of the harassment because failure to investigate complaints of anonymous harassment can result in legal liability. Under federal and state antidiscrimination statutes, it is an employer's responsibility to maintain a workplace free from harassment by co-workers and supervisors as well as third parties, including anonymous sources. If an employer knew or should have known about the harassment, an employer is obligated to aggressively investigate and take remedial and preventive action reasonably calculated to end the harassment. Failure to investigate all good faith complaints of harassment, including anonymous acts, may result in employer liability.
Step 2: Develop an Antiharassment Policy Including a Complaint Procedure
It is critical for an employer to develop, implement and enforce an antiharassment policy as well as a complaint procedure. Doing so will minimize the potential for liability and protect the employer's legitimate business interests by allowing the employer to address and attempt to remedy harassing conduct. Employees should have a clear understanding of what constitutes a harassment act as it could be verbal, written, digital etc. Employees should know how to report all harassment claims to HR or management's attention and there should be a clear reporting procedure where employees can report without fear of retaliation. The antiharassment policy should be incorporated into the employee handbook and communicated to new employees upon hiring.
Step 3: Document the Complaint and Begin an Investigation
Even if harassment is anonymous, an employer is on notice once it is reported. At this point, an employer should be sure to document and record the complaint in a detailed manner by speaking with the complainant or having the complainant provide a written statement. An employer has an obligation to promptly conduct a comprehensive, thorough and fair investigation. The employer may want to consider using an outside investigator who can function as a neutral third party to conduct the investigation.
The investigation should include gathering evidence and documents (such as emails and screenshots of social media pages), instituting surveillance and monitoring of the workplace, photographing and recording any evidence of harassing conduct (such as graffiti or voicemails) and performing a forensic analysis. It is crucial to interview not just the complainant, but also any witnesses as well as supervisors and co-workers. An employer should be sure to thoroughly document all steps it takes in the investigation as this will be the best evidence if the employee later claims that the employer did not act to remedy and address the harassment. Further, the employer should make every effort to keep the investigation confidential to the greatest extent as permitted by law.
Step 4: Alert the Authorities When Appropriate
It is critical for an employer to alert the authorities and bring law enforcement into the picture if necessary. This is particularly true because oftentimes, law enforcement will have the resources to conduct an investigation. For example, they may be able to run evidence against criminal databases. It is also essential for supervisors and employees involved in the investigation to cooperate with law enforcement.
Step 5: Institute Remedial Measures
Even if an employer still does not know the source of harassment, an employer can still take affirmative steps to address it. Measures may include, but are not limited to:
- Installing safety locks and gates;
- Increasing security presence and security procedures;
- Upgrading lighting in the workplace and in the parking lot;
- Instituting workplace surveillance by supervisors, cameras, telephone wiretaps or other monitoring devices;
- Seeking input from outside security experts;
- Setting up a hotline for employees to report future instances of harassment;
- Collecting handwriting samples for analysis and comparison;
- Analyzing handwriting and forensic evidence;
- Reviewing work schedules and logs of co-workers and supervisors;
- Reviewing logs of third parties visiting the work site;
- Covering up any graffiti;
- Interviewing all possible harassers;
- Communicating with the union and seeking assistance in finding the harasser;
- Offering additional security measures and protection for the complainant; and
- Reviewing the harassment policy with all employees and supervisors to reinforce the importance of filing a complaint and to notify employees that the employer will not hesitate to impose discipline for violations.
Step 6: Frequently Communicate with the Complainant
The employer should be sure to keep the complainant abreast of what steps it has taken in terms of the investigation. This will also reassure the complainant that the employer is seeking to remedy it and prevent future acts of harassment. Frequent communication with the complainant will assure the employee that the employer takes the harassment very seriously. During this process, the employer should be careful not to blame the victim or question the victim too much. It is also important for the employer to routinely check in with the complainant to see if he or she is continuing to experience harassment. Also, the employer needs to ensure that the complainant knows to report subsequent acts to management so that it may maintain a thorough record.
Step 7: Take All Reasonable Steps to Address Harassment
If an employer is able to determine who perpetrated the harassment, it should make sure to impose disciplinary measures. However, an employer should note that it may not be liable to the employee if it is able to demonstrate that it fulfilled its legal obligation to take all measures reasonably calculated to end and prevent future acts of harassment and it was still unable to resolve it or identify the harasser. The inability to determine the harasser's identity and impose disciplinary measures does not undermine the reasonableness of an employer's response. It is of paramount importance for an employer to respond adequately to allegations of harassment by initiating an investigation, taking measure to ensure workplace safety, highlighting the employer's antiharassment policies and making sure to maintain a safe work environment. Failure to respond can not only result in legal lability, but it can lead to decreased employee morale and negative publicity for the employer.
Step 8: Provide Antiharassment Training
It is essential for an employer to provide antiharassment training to employees and supervisors. In fact, a handful of states require harassment training for employees and/or supervisors. The training should advise workers on how to identify and report harassment regardless of the source and bring a complaint to management. It should detail appropriate and inappropriate workplace conduct and let employees know that the employer takes harassment seriously and will strive to rectify it.