We occasionally field urgent calls from worried school leaders confronted with allegations from one of their staff about perceived “harassment” or a “hostile work environment.” These situations present an understandably tense and thorny situation: the employee is certain they are enduring unfair or even unlawful working conditions, while leadership, often in the dark about the specific concerns, immediately envision a long, contentious battle in the courts of law and public opinion. And if parents get wind of the allegations, it will also require a careful balance between managing their concerns and questions while appropriately protecting employee privacy.
Certainly, these complaints have serious legal implications and should trigger a serious response. Yet, while such allegations can and do lead to litigation and negative press, more often than not, that result can be avoided by responding promptly and appropriately and adequately addressing the concerns. With that in mind, here are some guidelines to consider when faced with a complaint:
1. Refer to the written harassment policy1
An effective harassment policy should clearly outline the procedure for dealing with harassment concerns. It should also include a commitment from the employer to:
- Protect confidentiality, to the extent possible under the circumstances, without promising absolute confidentiality.
- Take prompt and effective remedial action if the employer determines that harassment has, or may have, occurred.
- Protect employees with honest concerns from retaliation.
Some policies include specific steps for responding to concerns. In that case, it is important to follow through accordingly. If the next steps are not clear, or the proscribed approach may not seem to fit the particular circumstances, that is a perfect reason to reach out to counsel for guidance. We cannot emphasis strongly enough how important it can be, as counsel, to be involved early and often when issues such as this arise.
2. Provide a safe and receptive intake environment to the complaining employee
Employees are often reluctant to come forward with harassment concerns for a variety of reasons. So when they do and then their complaints are handled inappropriately or, worse yet, nothing happens at all, employees can begin to lose faith in the system and eventually stop notifying management at all. That is an even greater problem for the employer in the long run. Leadership can prevent this from happening by providing a safe, confidential, and compassionate environment where employees can express concerns to an appropriate representative. That may be a human resource representative, the principal, or another administrator. It may be the direct supervisor too, though we often recommend the direct supervisor not be the only option because that person may not be perceived as neutral, or they may even be part of the particular concern.
Of course, if the employee reports a complaint of potential harassment to someone in leadership other than the designated individuals, it should not be ignored or treated as if was not received. Once any leader knows of a potential concern of this nature, regardless of whether it followed appropriate reporting channels or recommended procedures, the employer’s obligation to respond has been triggered. It is therefore important to ensure that everyone in leadership knows the proper protocols to follow if this occurs so the right responsive steps can be taken.
3. Conduct a proper investigation and do not delay
There is no “one size fits all” approach to workplace investigations. Each one must be tailored to the particular circumstances. The key is to make sure that the inquiry is prompt and as thorough as warranted under the circumstances. Some investigations may be conducted by someone within the organization, like an administrator or human resource professional with investigations training or experience. Other times, it may be better to engage an outside investigator. The employer should ideally work with counsel to evaluate the best option for the particular circumstances before proceeding. This will also ensure that any needed attorney-client privilege around these considerations is preserved.
In all cases, it is important to consider how best to protect the complaining employee from further harassing behavior or retaliation while the investigation is underway. This might mean separating the employee from the offending co-worker or placing the alleged offender on leave pending the outcome of the investigation. In any event, the complaining employee should not be disadvantaged or it may be considered retaliatory, even if it was well intended. Given the risks, this too is a decision that is also best made with input from counsel.
4. Take appropriate remedial action based upon the results
If the employee’s complaint is found to have merit, it is important to take prompt, appropriate corrective action. It should be based upon a thoughtful determination of what will both properly punish the wrongdoer and deter any future improper conduct found to have occurred. It should also be well documented.
Of course, commitments to progressive discipline such as those contained in school policies or an applicable collective bargaining agreement will need to be factored in. Likewise, due process protections that may require certain notice or additional procedures before termination or other disciplinary actions should be followed to the letter. That includes those protections conferred on certified staff pursuant to RCW 28A.405.300.
5. Be proactive about avoiding retaliation
No matter the result of the investigation, it is crucial that an employee who reports a concern does not experience retaliation for having done so2. The employer should clearly communicate an assurance of no retaliation to the employee, ideally both when the concern is received and after appropriate action has been taken. That assurance should also include a reminder of how to report any suspected retaliation. Any employees who participate in an investigation should receive the same assurance and reminder. Of course, if any concerns of either further harassment or potential retaliation are expressed, another inquiry should be conducted following these same guidelines.
We hope this article provides a useful resource for school leaders. Of course, this guide is not intended to serve as legal counsel for any specific situation, nor does it address all potential options or strategies that may be available, so it should not be used in place of working with qualified legal counsel.
1 The Washington State Human Rights Commission has published model policies and procedures, and additional information with a list of best practices, at www.hum.wa.gov/news/2018/12/sexual-harassment.
2 That is true even if it is ultimately determined that the conduct alleged did not, in fact, violate the law or an applicable harassment policy.