Sexual harassment: details on the internal investigation conducted by the employer

The employer is required to preserve the health of its employees and to ensure their safety. In this capacity, he must take all necessary measures to prevent the risk of sexual harassment. If he is confronted with such acts, he must put an end to them and punish the perpetrator.

Thus, in practice, when an employee alerts him to facts that may constitute a situation of sexual harassment, the employer must conduct an investigation. The Defender of Rights (decision number 2024-105 of July 11, 2024) recently recalled the principles that the employer must respect in the context of this investigation.

In this case, an employee had reported to her employer that one of her colleagues had made sexual comments about her and had also sexually assaulted her. The company then conducted an internal investigation at the end of which it concluded that there was no sexual harassment.

The employee brought her case to the Defender of Rights, which concluded that there was sexual harassment. He also asked the employer to change its investigation procedures.

Indeed, as the Defender of Rights recalled and contrary to what the employer claimed, the employee does not have to provide direct proof of the sexual harassment of which she claims to be a victim: she only needs to present factual elements suggesting the existence of harassment. It is then up to the employer to establish that these actions do not constitute harassment.

Secondly, the Defender of Rights specified that the investigation must be conducted fairly, and that the employer must ensure that all witnesses whose hearing is essential to the discovery of the truth are heard without the victim having to explicitly request it. A principle that the employer had not respected in this case.

Finally, the Defender of Rights recalled that the investigation should not be excessively long. In this case, the conclusions of the investigation were made more than 8 months after the hearings of witnesses. While the Defender of Rights admits that this duration is plausible in view of the complexity of the investigation, it nevertheless recommends that the employer improve its practices.

Facts: In this case, the employer had concluded that there had been no sexual harassment, even though all the evidence collected during the investigation (i.e., text messages, interviews with the victim’s colleagues, testimonies from other victims, acknowledgment of the perpetrator of having made comments of a sexual nature, etc.) established that the employee had indeed been the victim of sexual harassment. For the Defender of Rights, “the approach adopted by the investigators was to remove all probative value from the testimonies, to simply ignore certain passages, and to focus on a search for evidence instead of presumptive elements, i.e. clues which, taken as a whole, suggest the existence of sexual harassment”.