Handling Allegations of Sexual Misconduct in the Workplace

Addressing allegations of sexual misconduct in the workplace is a complex and sensitive task for any business. Proper handling of these situations protects employees and the organization. This article outlines steps and best practices for managing such allegations effectively.

Establishing Clear Policies

The foundation of preventing and managing sexual misconduct starts with clear, written policies. These should be part of an employee handbook and include:

  • Sexual harassment policies
  • Guidelines on appropriate behavior
  • Reporting procedures for misconduct

Ensure every employee receives and acknowledges these policies. Regular training sessions help maintain awareness and understanding of these guidelines.

Conducting an Investigation

When an allegation arises, prompt and thorough investigation is crucial. Here’s a step-by-step guide:

Document Everything

Maintain detailed records of all actions taken during the investigation. This includes:

  • Dates and times of incidents
  • Names of individuals involved
  • Summaries of conversations and interviews

Interview Involved Parties

Speak with both the complainant, the accused, and any witnesses. Having two investigators present can provide accountability and accurate record-keeping. It’s beneficial if one investigator shares the gender of the complainant to ensure comfort and openness.

Gather Evidence

Collect relevant evidence such as emails, text messages, and any other communications. Ensure compliance with privacy laws when accessing this information.

Deciding on Action

After the investigation, determine the appropriate course of action. The priority is to maintain a safe work environment.

Potential Actions

Depending on the findings, actions may include:

  • Issuing warnings
  • Mandating training or counseling
  • Reassigning or terminating the accused

Reporting to Law Enforcement

In severe cases, consider involving law enforcement. This decision depends on the seriousness and credibility of the allegations. Consulting with legal counsel can guide whether to report the incident.

Legal and Liability Considerations

Employers have a duty to:

  • Ensure a safe work environment
  • Properly supervise employees
  • Avoid negligent hiring

Employment Practices Liability Insurance (EPLI)

EPLI can help protect against claims of negligent hiring and supervision. Ensure your policy covers these scenarios.

Prevention and Training

Regular training and clear communication of policies can prevent misconduct. Encourage an open culture where employees feel comfortable reporting issues.

Handling allegations of sexual misconduct requires clear policies, thorough investigations, and appropriate actions. By fostering a safe and respectful work environment, employers can protect their employees and minimize liability.

Video Transcript


If you have been in business long enough and you have a lot of employees, it is only a matter of time before there is some sort of allegation of sexual misconduct. This can take many forms. It might be a joke that is lewd or has a sexual undertone that has been emailed from one person to another.

Maybe it was a conversation, a story that was shared over the lunch hour. Or maybe it is something more overt. For example, one employee asks another employee for a kiss or gives him a little shoulder rub. Maybe it is even worse, like some sort of sexual assault, pulling somebody into a room or asking them to go into a room privately, and then inappropriate sexual contact.

Common Employer Concerns

These are very difficult issues for employers to deal with. And they often ask me, “What do we do to avoid liability? What is the appropriate way to respond to this? We want to be mature, responsible, and reasonable and use best practices. How do we handle this?” So that is what we are going to talk about today.

Protecting the Company and Employees

How can the CEO, HR director, or manager protect the company, protect the employees, and handle a very difficult situation with grace and in a legally responsible manner?

Establishing Clear Policies

Ideally, the company has proper policies and procedures in place that say what conduct is inappropriate. So that might be some sort of sexual harassment policy, sexual conduct policy, employee behavior policy, or something like that. Ideally, you have that in writing.

Employee Handbook

So for those of you listening today, step one is to work with your employment attorney or HR consultant to get an employee handbook together and have clear policies on what is appropriate and, more importantly, what is not.

Communication and Training

So, step one, set the standard. Make sure that that is communicated. It is provided to every employee, and they acknowledge receiving it. Typically, they acknowledge that in writing, but it can be done with software as well. The second best practice is to revisit this from time to time in training. So you might have periodic training and review of the employee handbook so that it is very clear. Not only did everybody get it at first, but the company elevates the importance of people being aware of it and it remains fresh on the employees’ minds.

Responding to Allegations

And now let’s imagine that with that as the backdrop. Some sort of sexual misconduct occurs. What is a company to do? Well, we will walk through that, and then we will walk through what is a company to do if you don’t have that as the backdrop. In other words, you don’t have an employee handbook, clear policies, and procedures. You haven’t done any sort of training or conversation with people because you still have obligations and employees should act reasonably and legally. You know, you can’t go assaulting someone in the workplace just because it didn’t say you can’t do that in the employee handbook. So, what do you do?

Conducting an Investigation

Step one is to conduct an investigation. That is a formal-sounding word, but it just means figuring out what happened. And when you do that, make sure you document everything you do because your liability as an employer is based on, “Did you respond reasonably in this circumstance?” And so to prove that you responded reasonably, you want to document, “On what date? Who did you talk to? And what did you discuss? What did you find out from them?”

For example, you might talk to both employees who were involved in the incident to get both of their versions of the events. You might then go back and get clarification on points. You are going to have one or more conversations with those employees. Then you document that you had those employees. I also recommend having two people at a minimum conduct the interview.

Ensuring Accountability

Why? Because we don’t want to get into a situation where an employee says this is what happened and only one of you is there, and then later the employee changes the story, and it is, he said, she said, it is your word against the employees.

But if you have two people conducting the interview, that does a couple of things. One, it provides a second set of memories when making notes and if there is any dispute over what was said. Second, it helps provide some accountability for the investigators. We don’t want a situation where an investigator is asking questions of an employee and then the employee says, “I felt uncomfortable telling him that stuff. He kept asking questions about where was this at and what exactly happened and wanted all the lurid details.”

Gender Considerations

We want to avoid that, and you can help avoid that by having two people part of the investigation so that they are providing mutual accountability for each other and helping to protect the company. You should also consider having somebody of the same sex or gender as the employee who is considered the victim in the incident so that employees have somebody they feel comfortable with that they can talk.

Decision-Making Post-Investigation

So now you conduct an investigation. Now you have to decide what to do about it. Well, one of the initial questions is, “What do you want to do about it? Do you want to let an employee go or not?” Now, you are not going to let the potential victim go, but let’s say there is an alleged perpetrator. So one employee says, I will say it is a guy because often it is a guy, “This guy in the company did such and such.” But the guy denies it. Now, what do you do?

Legal Obligations and Safety

Well, do you have a legal obligation to fire the guy? Generally, no. What you do have, though, is a legal obligation to keep the rest of the employees safe. So that means handling him properly, making very clear what the violations are, and making very clear what is expected for behavior in the future. And then, turning to both the potential victim and other potential victims, the company has to make sure it has a legal duty to make sure employees are safe.

If a person, for example, has a track record of sexually assaulting coworkers, you probably can’t keep that coworker working there, or maybe that person works remotely only. But they might, virtually through email or through video, do something inappropriate. So usually, you don’t keep them. But the point is you, as an employer, must ensure a reasonably safe environment for all of the other employees in the company.

Preventive Measures

So think about what that looks like. That might look like training periodically, so everybody is aware of it. It might look like having some sort of security cameras around in open public spaces with signs making clear that everybody knows there is a camera up there recording.

Now, you have to check state laws. There are state privacy laws. You want to be considerate of that, but generally speaking, in a workplace in a common area, the employer has the right to put up cameras. Sometimes an employer will have a responsibility to do that to ensure the safety of the employees, especially if there have been incidents of something occurring and the employer is wanting to discourage that sort of conduct.

Gathering Evidence

Another part of the investigation will be gathering evidence that might be emailed to the employees involved. Might be text messages or some other chat or communication tools that the company uses. You can ask the employees to look at their text messages on their phones. Now there are some privacy laws related to that if they don’t want to allow you to.

Involving Law Enforcement

Another big question is, “Do you report this to law enforcement?” Generally speaking, you are permitted to report it if you want, but normally employers don’t want to deal with law enforcement, and it feels like it is escalating an issue. So the first question is, “Do you want to? Do you feel like the allegations are serious enough, legitimate enough, or likely occurred?”

Legal Coverage

If it seems like something unlawful occurred, reporting it to law enforcement can provide some legal coverage for the employer because it shows this wasn’t a cover-up. The employer invited law enforcement in to conduct its investigation and cooperate so that justice could be done and to preserve the protection and legal rights of everybody, potential victims, other employees, members of the community, etc.

Deciding on Reporting

So you will think about whether to invite law enforcement. Why might you not? Well, if the allegations aren’t serious enough, like it is not illegal, even if true, it is not illegal. Or maybe you are doubtful that it is true. Things just aren’t adding up. You hear one person deny it. The other person makes these allegations, but let’s say the person who made those allegations has a track record of making false allegations. And let’s say also, a number of the parts of the allegations don’t match they said they were here at 7:30 in the morning, and that is when the event happened, but their time card shows or their security card shows that they didn’t clock in until 8:30 or they didn’t enter the building until 8:30.

Well, it could be that they just got the time wrong, but it also could be that they are lying, and so to some extent, you might have to decide, “Do we even want to invite law enforcement, and do we feel it is legitimate enough that these are reasonable allegations that shouldn’t involve law enforcement?” If you don’t know what to do, bring in the company’s attorney. Run the whole scenario by the attorney, which provides a benefit in a couple of ways.

Benefits of Legal Consultation

First, it demonstrates that you have made a reasonable effort to respond to these allegations. Second, it involves the attorney. It makes the attorney a witness to the case. It also may pass on some liability to the attorney because if the attorney says what you should do and you do that and then it goes bad, you might have a claim against the attorney for bad advice.

Employer Responsibilities

So at the end of the day, what are you worried about here as an employer? I mean, you are probably not going to get charged with a crime. You didn’t even know that one employee may or may not have done something. So, what are you worried about? The law requires employers to have reasonable policies and procedures in place for employees. Make employees aware of that. So reasonably onboarding, reasonably hiring employees.

Negligent Hiring and Supervision

By the way, if you hire an employee who has a track record of some sort of misconduct, that might be a claim of negligent hiring. Because if you were negligent in hiring an employee who you should have known, if you had done reasonable due diligence, you would have known that employee was likely to re-offend. That would be a claim against the employer. So against you for negligent hiring.

The other big legal liability is negligent supervision. If you have failed to have proper supervision that includes policies and procedures, that includes a proper response if there is an allegation of misconduct. If you have negligent supervision, the employer can be liable.

Employment Practices Liability Insurance

By the way, what can you do about all this stuff? One thing you can do is get employment practices liability insurance. That is abbreviated EPLI. That is usually a low-cost way to get coverage for these sorts of employment practices claims that can come up. So you will want to make sure that the policy itself would cover this sort of thing. Negligent supervision and negligent hiring.

Creating a Safe Work Environment

But the key to all of this is to protect the company from liability and help all of the employees flourish by being able to stay focused on their responsibilities at the job, not worrying about their safety, not worrying about the distraction of somebody who is making rude comments or inappropriate comments or misconduct of any sort.


It is bound to happen in most companies that you will have some allegations of misconduct, and in particular, sexual misconduct. To avoid that, have appropriate policies in place that usually take the form of an employee handbook. Have a good process for hiring, so you are doing a little bit of a background check—maybe not a full legal background check—but you are checking on references and the credibility of the people you hire.

Next, make sure proper supervision is in place and that the rules are known. The employee handbook is reviewed from time to time. Employees are allowed to review it while at work and then sign off that they have reviewed it and they are aware of all the policies. Maybe provide some training. And then, when an allegation comes up, document everything, investigate it thoroughly, involve legal counsel, decide whether to report it to law enforcement, and establish a written plan to follow up with the people that were involved so that if they are kept in employment, you have demonstrated that you very reasonably and maturely responded to the situation to keep everybody safe and to keep the employees focused on their work, not distracted by these sorts of legal things.

About the Speaker

I am Aaron Hall, an attorney for business owners and entrepreneurial companies. I put together guides for business owners to avoid common problems in their business. If you would like to get some of these free guides, you can go to AaronHall.com/free. Just sign up. You will get a PDF. You will also get access to some of the video training that I do on those topics, so you can avoid some of the common problems that happen in many other companies out there so they don’t happen to you.