when you suspect employee harassmentWhen you suspect employee harassment – that one of your employees harassed another – but you only have their conflicting stories to go on, what action can you take? If you have no videos, no witnesses, no emails, and only the accuser’s account of the incident, can you discipline with only this information, especially if the accuser’s account seems much more credible than that of the accused?

Workplace harassment in all forms (but especially sexual harassment) has been top of mind for many businesses in the past few years. In 2018, over 13,000 sex-based harassment claims were filed with the Equal Employment Opportunity Commission (EEOC). This number doesn’t include charges filed with state and local agencies or situations where employees went directly to an attorney. And many employees who are victims of sexual harassment or are affected by it never report the incidents at all.

It goes without saying that the workplace should be a safe and secure place, and it’s the employer’s responsibility to make it that way. No one can prevent all harassment from happening, but employers can and should do everything in their power to prevent harassment and appropriately respond when it occurs.

In cases where you don’t have evidence other than what each party is claiming, it would be a good idea to consider whether your investigation was thorough. If it was, and all you have to go on is the testimony of the accuser and the accused, then you should take their credibility into consideration and make a determination based on their respective accounts.

Here are some factors to consider when determining credibility:

  • Each employee’s reputation for truthfulness and accuracy
  • If the story each employee presents is plausible
  • Whether one of the employees has a motive to be untruthful
  • Whether one employee’s statements regarding the incident are more detailed and consistent

While disciplining an accused employee who did nothing wrong would be unfortunate, it wouldn’t be illegal. As in all cases of alleged harassment, it’s best to have documentation of the allegations, the steps of your investigation, your conclusions, and any disciplinary actions you took.

All employers in New York are subject to sexual harassment prevention laws that take effect this year. Check out GTM’s extensive resources on these laws, then request a free quote to learn how we can keep our clients compliant with these training regulations.

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