Investigating Sexual Harassment Claims: A Guide for Hospitality Employers
By Marc Stephen Shuster Partner, Berger Singerman | March 01, 2015
Co-authored by Laurie Weinstein, a member of Berger Singerman's Dispute Resolution Team
Approximately 90% of women in restaurant jobs who depend on tips have asserted that they have been sexually harassed at the workplace, according to findings published by the Restaurant Opportunities Center United and Forward Together in October 2014. Recent reports in the media about hotel housekeepers who may have been sexually assaulted and harassed by guests show that this problem likely exists in the hotel industry too. Although some of these claims may not prove to be true, this point is clear: the failure to properly address sexual harassment complaints may render an employer liable for significant damages to a prevailing employee, including the employee's attorneys' fees and costs. Furthermore, mismanaging sexual harassment claims can also result in negative publicity, loss of productivity and morale, and higher turnover rates.
Once an employee has complained of sexual harassment, an internal investigation is necessary to address and resolve the claim. This article describes best practices to take when conducting an internal investigation of a sexual harassment claim.
Who Should Investigate the Sexual Harassment Claim?
The individual who conducts the investigation must be impartial to the complaining employee, the alleged harasser, and any witnesses. Importantly, the investigator should not be subordinate to the alleged harasser. In a similar vein, the investigator should not have a social friendship with the alleged harasser.
Hiring an outside and independent investigator is not necessary but might be wise. If an employer hires an outside investigator, it may dissuade the complaining employee or the alleged harasser from later claiming that the investigation was biased or incomplete. The witnesses may be more forthcoming if an outsider investigates, as opposed to someone within the company. Also, if an outside attorney is hired and performs the investigation, an employer may be able to prevent certain documents or discussions from being later disclosed if the employee files a lawsuit.