It's 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 and interviewed.

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.

INTAKE FORM

I. Name:__________________________________________

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 investigation.

Signature: _____________________ Date: _____________

Employee: _____________________


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 do?

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 accordingly.

REQUEST FOR NO FURTHER ACTION

I. Name:_____________________________

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: _______________

Employee: ___________________


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 [email protected].