An employer who receives a complaint of harassment on the basis of sex, race, national origin, age, religion or disability has an obligation under federal and state law to take immediate steps to investigate the complaint and if needed, take prompt, appropriate remedial action. In most cases, this means the employer has a duty to begin investigating the complaint within 24-48 hours.
Even if the employer believes the complaint is unjustified, the employer should to conduct a reasonable investigation in order to minimize the possibility of legal liability. Likewise, the employer may not fire or take other adverse employment action against the person accused of the harassment without first conducting an investigation. Employers who do so may face claims of wrongful termination, retaliation, defamation and/or reverse discrimination.
During the investigation, the employer may need to take steps to separate the person who made the complaint from the person(s) alleged to have committed the harassment. The employer should be careful that any actions it takes not be considered retaliatory by either party. For example, the employer cannot forcibly transfer the individual making the complaint to another department.
If after conducting the investigation the employer determines that some or all of an employee’s complaint is grounded in fact, the employer must take action calculated to end the harassment. Such action could include disciplining the harasser and formally noting the discipline in his or her personnel file, requiring him or her to take training or firing the harasser. Allowing the employee to remain in the position after a positive investigation would certainly expose the employer to liability if the actions occur again.