No Need to Prove That Workplace Harassment Occurred Beyond a Reasonable Doubt in Business and at Work

As I listened to a webinar last week featuring one of my favorite HR / Legal bloggers, Eric Meyer, he reiterated one of the most confusing aspects for employees (and a good percentage of employers) to understand when a harassment complaint is filed, investigated and remediated:  that the workplace is not a court of law; and consequently, the employer is not required to prove beyond a reasonable doubt that the harassment occurred.

Instead, compliance requirements compel the employer to:

  • Communicate a clear and rock-solid Harassment Prevention policy and due process for any employee to file a harassment complaint;
    • Regardless of employer compliance requirements, that the policy clearly convey that behaviors that lead to harassment and/or that fall under the definition of harassment;
    • Per the Equal Opportunity Employment Commission, training should be conducted by qualified, live, and interactive trainers. Live trainers who are dynamic, engaging, and have full command of the subject matter are the most likely to deliver effective training;
  • Investigate any and all harassment complaints expediently and thoroughly; depending on the circumstances, especially to avoid any perception of conflict of interest, the investigator can be:
    • A member of the organization’s HR team;
    • A member of the organization’s Loss Prevention team;
    • An experienced third-party harassment investigator; or
    • A labor lawyer experienced with conducting third-party harassment investigations;
  • Produce an investigation report with a conclusion of whether or not the harassment occurred;
    • In following this investigation process, employers are required to meet the standard of the preponderance of the evidence: if the employer believes the evidence at the conclusion of the investigation shows that the target of the harassment complaint more likely than not—more than 50% likely—is responsible for the harassment; and
  • Take corrective action to ensure that the harassment does not occur again.

How do you ensure the preponderance of the evidence (or not) when investigating harassment complaints in business and at work?

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