In today’s global workplace, managing sexual harassment complaints is no longer a matter confined to a single jurisdiction. As companies expand across borders, their legal obligations become increasingly complex. A recent Seyfarth Shaw webinar  brought together employment law experts from the US, UK, France, Spain, Italy, and Latin America to explore the challenges of conducting cross-border investigations into sexual harassment.

The key takeaway? There is no universal playbook. Each jurisdiction brings its own legal framework, cultural expectations, and procedural nuances. For multinational employers, understanding these differences is not just helpful—it’s essential to managing risk and ensuring fairness.

A Patchwork of Legal Duties and Definitions

Across jurisdictions, the legal duty to prevent harassment varies significantly. The UK has recently introduced a positive duty on employers to prevent sexual harassment, requiring proactive risk assessments and preventative measures, much like health and safety obligations. This marks a move from reactive compliance to active prevention.

In Italy, Mexico, and Brazil, the obligation is framed within broader duties to take all necessary measures to protect employee health and safety. France goes further by incorporating the duty in the Labor Code and mandating disciplinary action against perpetrators. France also requires that the sexual harassment has happened at least twice unless the act relates to obtaining a sexual act, which is limited to a single act.

Spain also requires employers to prevent sexual harassment but has also introduced new obligations under its “Only Yes Means Yes” law, requiring employers to implement training and protocols to prevent sexual violence in the workplace.

In contrast, the US legal framework is rooted in Title VII of the Civil Rights Act and shaped by decades of case law. However, recent political developments have introduced uncertainty, particularly around protections for gender identity and sexual orientation. The legal landscape remains dynamic, and employers must stay vigilant.

The Fragile Shield of Legal Privilege

One of the more challenging aspects of cross-border investigations is managing legal privilege.  In the UK and US, privilege is a well-established principle, but how it is applied in the context of an investigation will vary depending on whether the privilege relates to attorney advice or attorney work product.  In jurisdictions like France and Spain, the concept of legal privilege is defined differently and is governed by the rules of confidentiality and professional secrecy. However, what material is protected will vary depending on whether the lawyer is external or an in-house and the application of this principle varies between EU states.

This creates a strategic challenge: conducting a thorough investigation while minimizing the risk of exposing sensitive information to the public. The solution often lies in the early involvement of external counsel, the preservation of confidentiality, which includes limiting the circulation of material in-house.

Timing Is Everything

In some jurisdictions, timing can make or break an investigation. Although all jurisdictions encourage investigations to be conducted promptly and diligently.  France and Spain, for example, impose strict deadlines for initiating disciplinary action once an employer becomes aware of misconduct. In Spain, these can be as short as 10 days. But what constitutes “awareness” is often debated. Employers must be able to demonstrate that they had sufficient knowledge to act and justify any delay.

Companies should start investigations promptly and document every step. Delays can undermine the credibility of the process and expose the company to legal risk.

Jurisdictional Overlap and Legal Complexity

When misconduct involves employees from multiple countries, determining which law applies becomes a critical and complex question. The location of the incident, the residence of the complainant and the accused, and the governing law of their employment contracts all play a role. Often, multiple legal systems must be considered simultaneously.

This reinforces the need for a coordinated, multi-jurisdictional approach to investigations. Failing to align with local legal requirements can compromise the investigation and limit the company’s ability to take effective action.

Confidentiality Isn’t Optional

In many jurisdictions, once a complaint is made, the employer has a legal obligation to act even if the complainant requests confidentiality or later withdraws the complaint. Ignoring such a report is not an option. In the UK, for example, the duty to prevent harassment means that employers must investigate to understand the risk and take appropriate action.

This underscores the importance of having clear, well-communicated policies and trained HR professionals who can manage these situations with sensitivity and legal awareness.

Cultural Norms vs. Legal Standards

Cultural context can influence how behavior is perceived, but it does not override legal standards. In many jurisdictions, the focus is on the impact of the behavior on the victim, not the intent of the accused. While cultural norms may be considered when determining the severity of disciplinary action, they do not excuse inappropriate conduct.

Employers must ensure that their global workforce understands and adheres to a consistent standard of workplace behavior, regardless of local customs.

Retaliation and Redundancy: A Legal Minefield

One of the most sensitive areas in cross-border investigations is the risk of perceived retaliation. If an employee who has raised a complaint is later selected for redundancy or disciplinary action, the company must be able to demonstrate that the decision was based on objective, unrelated criteria.

In jurisdictions like Spain, France, and Italy, the burden of proof often shifts to the employer once a retaliation claim is raised. This makes documentation, transparency, and multi-person decision-making essential. Even the appearance of retaliation can damage trust and lead to costly litigation.

Practical Next Steps for Managing Risk in Cross-Border Investigations

To protect the interests of all parties involved in what are often complex and sensitive matters, requires careful planning and early engagement with local in-house experts or counsel.  Each jurisdiction presents its own legal landscape and procedural nuances, which rarely align neatly with global policies or internal protocols. Missteps at the outset can have serious consequences, including the risk of undermining a company’s legal position.

 In-house counsel and HR professionals should consider the following practical steps:

1. Review global grievance and disciplinary polices to ensure they allow flexibility to defer to local policies where it is necessary to comply with local laws.
2. Conduct a jurisdictional risk assessment and engage local counsel early to accurately interpret and apply relevant local laws.
3. Do not assume US law and policies will automatically apply to conduct committed overseas by employees of a US company. Often multiple jurisdictions will be engaged.
4. Initiate investigations promptly upon becoming aware of potential misconduct. Document the timeline of awareness, decisions made and actions taken to justify any delays. A clear audit trail is essential to defend against claims of inaction or procedural unfairness.
5. Provide targeted training to key stakeholders so they understand the jurisdiction specific timelines and procedural requirements for investigations and disciplinary processes.

Contacts/Resources from Webinar

David S. Baffa, Partner, Seyfarth Shaw LLP

Matthew Banham, Partner, Seyfarth Shaw LLP

Sofia Bargellini, Partner, Seyfarth Shaw LLP

Ana Cid, Partner, Seyfarth Shaw LLP

Laurence D. Harvey Wood, Partner, Seyfarth Shaw LLP

Pete L. Talibart, Partner, Seyfarth Shaw LLP