4:30 PM, near the end of a long day at your club, when a server
from your dining room walks into your office and says, "I
can't take it anymore!" She goes on to say that the your sous
chef has been coming on to her for the last three weeks. She
further states that he won't stop even though she holds up
her hand to demonstrate her wedding ring each time he asks
her out. She is really uncomfortable about the situation and
it is beginning to have an impact on her ability to perform
her job. What do you do?
ACTING UPON A COMPLAINT OF SEXUAL HARASSMENT
When a complaint is lodged, or when inappropriate activity
is brought to the attention of management, the employer must
act immediately. It is to the employer's advantage to try
to resolve the issue first through a thorough in-house investigation.
As much information as possible concerning the nature of the
allegation should be collected in order to resolve the matter,
in short order. The complainant should be encouraged to be
as specific as possible in describing the harassing incident(s),
including the names of people who might have witnessed or
heard about the event(s) that allegedly took place.
At the time of the complaint, the employer should obtain the
claimant's permission to start an investigation. Written consent
forms (see "Intake Form") are recommended, although there
is a school of thought that believes that this might have
a chilling effect on the bringing of any action. The complaining
employee should be informed of the general scope of the investigation,
and should be allowed to set forth the particulars of the
allegations. The written text should acknowledge that the
club was given permission to disclose the information contained
in the complaint to third parties so that, if necessary, the
investigation can be pursued thoroughly.
If the complainant takes the position that the mere presence
of the alleged harasser causes anxiety and distress, do not
as an interim measure transfer the complaining party to another
job or position. Suggest a couple of days off with pay while
you investigate the complaint. A transfer tends to undermine
the confidence of the victim, particularly after being told
that there would be no retaliation for bringing the concern
to the attention of management.
INVESTIGATING THE COMPLAINT
If you choose to undertake an investigation, be sure to do
so thoroughly. Employers have been held liable for sexual
harassment when the complaints have been investigated negligently
or recklessly. In proceeding with the investigation of the
alleged misconduct, the employer should exercise discretion
in selecting the employees who will be interviewed. It is
advisable to confine the investigation to the circle of the
alleged victim's immediate coworkers who witnessed the incident,
or were privy to the claimant's situation and confidence.
The objective is to garner as much information as possible
to conduct an even-handed and fair investigation. Always conduct
the interviews in private. The results should be discussed
with the accused in a non-threatening manner. To maintain
the integrity of the process, individuals identified by the
accused who might disprove the allegations should be contacted
DOCUMENTING THE INVESTIGATION
The investigation should be carefully and accurately documented.
Conversation and interviews with witnesses should be recorded
in writing, and whenever possible, signed statements should
be obtained. A record of the decision made after the investigation
should also be on file, and all papers should be maintained
in a separate dossier. References to the claim should not
appear in the personnel file, unless the offender has been
issued a disciplinary action after a thorough investigation,
or if a notation is necessary in the claimant's file to explain
frequent use of sick leave or excessive absenteeism during
the period of harassment.
The investigation file should be retained at least as long
as the statute of limitations- ordinarily 2 years from the
date the incident occurred-for bringing a sexual harassment
claim or other tort action based on either the harassment
or the club's investigation and decision.
II. Position and Title: _______________________________
III. Facts of Situation: (attach as many pages as necessary)
IV. I hereby request that the club investigate the facts set
forth above. I also authorize the club to disclose as much
of the facts set forth above as necessary to pursue the investigation.
I also understand and acknowledge that the club shall use
due diligence in keeping this matter as confidential as possible.
I recognize, however, that in the course of the investigation
the information may need to become public to do a thorough
Signature: _____________________ Date: _____________
48 hours later…
The same server enters your office and says, "I have changed
my mind. I no longer want to file a complaint." What do you
WITHDRAWAL OF COMPLAINT
An employee who alleges a claim of sexual harassment, then
requests that no action be taken or puts certain conditions
on the release of the information, hinders the investigation
and raises concern. It is appropriate in this set of circumstances
to get a written and signed statement (see "Request for no
Further Action" form) from the claimant stating that he/she
does not wish to pursue this matter further and is comfortable
with no action being taken. In some situations, however, it
may be necessary to pursue action, in spite of the employee's
refusal to continue. For example, the facts brought to management's
attention may be so egregious as to warrant the consideration
of immediate remedial action such as suspension or termination
of the alleged harasser. Failure to do so could subject the
club to liability for negligent retention if the perpetrator
acts again before intervention by management.
A note of caution: Just because an employee does not agree
to formally complain or follow through on a complaint does
not relieve the employer from the responsibility to provide
a safe working environment. Ignoring the issue, and burying
your head in the sand while pleading ignorance and pretending
that everything is under control, will just not do it today.
The courts have spoken clearly and club managers must act
REQUEST FOR NO FURTHER ACTION
II. Position and Title: ___________________
III. On the day of ____________ 200_ , I previously completed
an intake form which, among other things, requested that the
club investigate certain facts stated by me, a copy of which
is attached to this document. I have now decided that it would
not be in my best interest to pursue this matter, and am comfortable
with my environment in the workplace, as it presently exists.
I have been made aware that in the event that I become uncomfortable,
I can seek the assistance and support of the club at any time,
and have been encouraged to do so. At this time, however,
I am requesting that at least for my benefit, no further action
be taken in this regard, and I fully understand that an investigation
for my benefit shall not take place. I do understand, however,
that the club, after having been made aware of these circumstances
may elect to pursue an investigation on its own behalf and
for the benefit of other employees.
Signature: ___________________ Date: _______________
Stephen Barth is an attorney and associate professor of law
and leadership at the Conrad N. Hilton College of Hotel &
Restaurant Management at the University of Houston. For more
information visit www.HospitalityLawyer.com.
Stephen can be contacted at (713) 963-8800 or via email at