Are Sexual Harassment Investigations Confidential?

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An all too common occurrence in the modern workplace is the sexual harassment. This can take many forms, like unwelcome sexual or romantic advances, sexual blackmail, offensive touching, discussions of intimate activities that make others uncomfortable, etc. While there are a number of laws to protect those who complain of such activities, what of those who are accused, particularly if the sexual harassment claim is determined to be unfounded or used as a means of embarrassment or retaliation?

Unfortunately, many may be surprised to find that there are not laws protecting the accused in these situations. It is common for many to believe that because our criminal system follows the policy of “innocent until proven guilty” this is not always the case in every transaction. Indeed, in most settings, such as those set up by businesses to self-police against sexual harassment, there is no such guarantee and one is often “guilty until proven innocent.” A mere accusation of sexual harassment or other impropriety can often lead to one's termination without any further review.

Of course, one who is let go after an accusation of sexual harassment may have a claim for defamation against his or her accuser. Through claims for slander or libel, the individual may be able to obtain both public recognition of their innocence as well as monetary damages for the loss of employment. Of course, such a claim can be expensive to maintain and, if the accuser is not wealthy, it may be difficult to collect on any judgment.

But, that leaves open the question of confidentiality. In most instances, there is no policy that an accusation of sexual harassment remain confidential as relates to the accused, though who made the accusations may be kept secret. This creates a problem for those who may be in positions subject to regular claims of abuse, such as line managers. Not only may they be unaware of who has accused them, but they may develop a reputation for sexual harassment that could, in and of itself, lead to other accusations by disgruntled employees and more critical scrutiny by employers.

For employers, it is probably wise to implement a policy of keeping these matters confidential in order to avoid inciting other complaints. It also minimizes the company's exposure to claims by the accused regarding wrongful termination, slander, or other claims. This is also the rationale behind employers limiting their comments on prior employees during calls for references to simply verifying dates of employment and eligibility for re-hire.

Of course, there is no perfect solution for either employers or those accused of sexual harassment. Nevertheless, if you are a company concerned about how best to deal with these issues, you should consult corporate counsel for guidance on the best practices for your business. Similarly, if you are an individual who has been accused of sexual harassment and are concerned about the confidentiality of such accusations, your available options against the employer and the accuser, defending against the accusations, etc. you should contact an attorney in your area who focuses his or her practice in employment law.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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