Aaron Tandy of Pathman Lewis in Miami.

Imagine you are a manager in attendance at a company-sponsored holiday party and in the spirit of the holiday season you hug a number of co-workers of the opposite or same sex. You have worked with some of them for a long time and others are very new employees.

The following week a complaint regarding your conduct is made to the company's human resources manager. What happens now regarding you, the complainant and the HR department? The true answer is it all depends–it depends on history, severity, context and perspective, and it depends on the type of action the company takes to respond to the complaint, the result of any investigation and the way you and the company react.

First, given all the recent media reports, it is important to recognize that while several more outlandish forms of touching–groping, pinching, patting or grabbing–are clearly inappropriate and can form the basis for a claim of sexual harassment, any form of unwanted or unwelcome contact could be seen as being inappropriate and therefore lead to an HR complaint. So here, while hugging may seem an innocuous social convention, especially at a party, it could still be unwanted or unwelcome contact and require it to be addressed by you and HR.

No 'Free Passes'

Second, it is important that the HR department treat the complaint and the complainant seriously and with dignity. Nobody is entitled to a “free pass” regardless of their position with the company or their standing in the community. HR departments which are dismissive of or disrespect a complainant by questioning their experience because of who is being complained about, or exhibit other negative biases, do their companies a significant disservice and may actually create more problems.

Showing empathy and promptly addressing the complaint through an investigation can often prevent a manageable situation from turning into a major incident. Discouraging employees from coming forward, creating an unwelcome environment when they do come forward, or failing to implement and enforce rules about acceptable workplace behavior expose the company to greater liability.

Third, it is important to recognize that while a single severe incident may be sufficient to lead to or require significant discipline, if not outright termination, a measured company response will center around the frequency of the complained contact and any prior history. Assuming the actions at the party are not a frequent occurrence and there was no intention of making the co-worker(s) uncomfortable (i.e., you are not  known at the office as “Mr. or Mrs. Hands”), chances are the complaint can be addressed by understanding that your conduct offended some people, admitting or accepting that you  should have been more considerate of the feelings of others, agree not to engage in repeat activity, accepting any discipline from the company, and apologizing to the co-worker(s).

Fourth, your attitude after the complaint and HR's investigation into the matter are equally important. Even if, in the example here, it turns out that the issue can be addressed when it is brought to your attention, stifle the all-too human reaction to confront your accuser. And don't seek or have others seek to retaliate against the complainant on your behalf. Even mild forms of retaliation, giving employees the “cold shoulder” or not including them in activities, or making them uncomfortable for having gone to HR, creates a separate cause of action. Even if you feel the original complaint lacked merit or is unfair or unfounded, retaliation claims take on their own separate identify and often lead to protracted litigation.

Importance of Anti-Harassment Policies

Fifth, employees take direction and signals about how serious employers are about their policies by watching how they are implemented or ignored. It is up to HR to undertake a thorough investigation and demonstrate to employees that the company takes its anti-harassment policies seriously. Utilizing the incident identified here as a “teaching moment,” educating employees about appropriate behavior and having pro-active intervention or responses will help the company encourage the type of acceptable, work appropriate behavior it values.

Finally, to the extent that as a result of the complaint and investigation, the company learns that its policies need to be updated or more training is needed, begin that process as soon as possible.

Aaron Tandy heads the Pathman Lewis' employment law practice, helping employers and employees navigate complex employment issues. He can be reached at [email protected].