California HR

Investigating Sexual Harassment Complaints: What To Do When The Victim Wants To Keep It Confidential

An employee who is being sexually harassed may want to keep matters private because of embarrassment or fear of retribution. She might complain to you, but refuse to reveal names or ask that you not disclose anything she told you. Or you might hear about the harassment from a concerned co-worker because the victim doesn’t want to come forward. In such cases do you have an obligation to investigate?

A federal Court of Appeal recently ruled that a victim who asked her employer not to do anything about her sexual harassment complaint couldn’t then sue the employer for failing to take action. However, despite this decision, handling confidential harassment complaints can still be tricky.

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Harassment Victim Wants Confidentiality

Jenice Torres was a secretary at a university dental clinic. Torres alleged that her supervisor, Eugene Coe, constantly harassed her. She said he made insulting remarks about her body, crudely indicated to other employees his desire to have sex with her and called her a ‘spic,’ along with many other offensive comments.Torres did not initially complain to management. But after about three years of problems, a co-worker reported them to supervisor Leonard Pisano. Pisano met with Torres and suggested she file a written complaint. She didn’t and Pisano took no further action.

A few months later, when Pisano was promoted and became Coe’s direct supervisor, Torres finally sent Pisano a written complaint. She explained that she hadn’t come forward sooner because Coe’s former supervisors were his friends and she felt she had no one to turn to.

Torres asked Pisano to keep the letter and details of the harassment confidential and not to take any action against Coe.

Pisano then met with Torres, and she reiterated her desire to keep the complaint under wraps. Although Pisano didn’t take any immediate action, he eventually arranged for Torres to meet with vice president Stephen Heller. Heller didn’t investigate, but referred Torres to a counselor to help her cope with the harassment and transferred her so she wouldn’t have to work for Coe.

Torres, nevertheless, filed a discrimination charge against the university with the federal Equal Employment Opportunity Commission. When Heller learned about the charge, he commenced an investigation into the harassment and ultimately fired Coe.

Not satisfied, Torres took her complaint to federal court, arguing that the university was obligated to investigate when she first complained. The university responded that it wasn’t liable because Torres had specifically requested confidentiality and that no action be taken.

Not Unreasonable To Honor Confidentiality Request

The Court of Appeal said that under federal law an employer generally is responsible for sexual harassment committed by a lower-level supervisor such as Coe. And an employer has a duty to investigate and take measures to stop the harassment.

But, according to the court, an employer who honors a victim’s request not to take action does not necessarily violate its legal duty to end the harassment. Whether an employer is still obligated to respond depends on whether the harassment is so severe that a reasonable employer would not stand by and do nothing.

The court concluded that the harassment of Torres was not that severe, and therefore it was reasonable for Pisano to honor her request and refrain from taking action. The court threw out Torres’ lawsuit, and the U.S. Supreme Court recently declined to review the ruling.

Confidentiality Not An Excuse For Inaction

Although the Torres case occurred in New York, it is one of the few rulings on this common problem, and California courts may well use the same analysis. But deciding whether you must investigate a sexual harassment complaint, even when the victim asks you not to, depends on the facts of each situation. You run a serious risk if you automatically assume that you can do nothing simply be- ccause that’s what the complaining worker says she wants.

How To Handle Confidential Complaints

Here are three practical approaches for managing confidential harassment complaints:

  1. Investigate allegations and don’t promise confidentiality. It’s critical to at least attempt to investigate every complaint even if the employee requests it be kept between you and her. Explain to the employee that you have a duty to investigate and stop the harassment, but that you will conduct the investigation as discreetly as possible and disclose sensitive information only on a need-to-know basis. Also let her know you will maintain the files related to the complaint separate from routine personnel records. 
  2. Reassure the employee. Tell the worker no adverse job action will be taken against her for coming forward. And, if it turns out you need to discipline the accused harasser, be sure you don’t penalize the victim in the process, such as by transferring her to a less desirable shift, position or location.
  3. Respond to vague complaints. Despite your guarantee of a discreet investigation, some victims may still decline to give you names and details of the events. If this happens, conduct a low-level inquiry to see if you can gather additional information. If nothing turns up, consider issuing a stern reminder to the department or group involved that your policy is zero-tolerance of sexual harassment.