Harassment Investigations: An Employer's Guide
When employers learn about allegations of sexual or other harassment, they have a duty to launch a prompt, impartial, and thorough investigation. Effective investigations can promote a safe, fair, and productive work environment and can help prevent harassment from reoccurring. Here are some guidelines for conducting a comprehensive investigation:
Take all complaints seriously.
Whether you receive a formal or informal complaint, take all complaints seriously, regardless of who is involved. Encourage employees to report issues before they become severe or pervasive and without fear of retaliation. Provide employees with multiple avenues to raise complaints, including their own or other supervisors and HR.
Launch a prompt investigation.
Start an investigation as soon as possible, remain impartial, and be thorough. Depending on the circumstances, consider whether you need to hire an outside third party to conduct an impartial investigation. When possible, more than one individual should be involved, including acting as a witness during interviews. Investigators should be trained on the process and instructed to remain objective.
Protect confidentiality to the extent possible.
Protect the confidentiality of the investigation to the best of your ability. However, avoid promising confidentiality, since it may not be possible to keep all information completely confidential. Explain that the company will keep information confidential to the extent possible for a thorough investigation and as permitted by law. Report information learned from the investigation only to those who have a legitimate business need to know.
Create an investigation file.
Create a confidential file to document the complaint as well as the steps you take throughout the investigation process. In the file, retain: (1) all interview notes; (2) all communications with witnesses, the complainant and the accused; (3) all written witness statements; (4) all documents that relate to the allegation; (5) the investigator's report; and (6) all documentation notifying appropriate parties of the investigation results and any remedial action taken. Keep the investigation file in a secure location separate from personnel files.
Take steps to prevent retaliation.
Make sure employees understand that they will not be retaliated against for raising complaints or participating in an investigation. Include anti-retaliation provisions in equal employment opportunity, anti-harassment, and other applicable policies. Remind all parties of these provisions at the outset of the investigation.
Prepare to interview appropriate parties.
Identify who you will interview (the complainant, each witness, the accused) and prepare a list of questions. Interview each party separately, in private, ideally with another individual to serve as a witness to the investigation. Many investigators choose to speak with witnesses before interviewing the accused. During interviews, never offer any opinion or say anything to interviewees that would indicate you have already reached a conclusion (such as, "I believe you," "this is a meritless complaint," etc.). Take detailed notes and look for inconsistencies, opportunities for clarification, additional evidence, and the names of other potential witnesses.
Interview the complainant.
Explain the investigation process and ask the complainant questions related to what happened, who was involved, when it happened, and how it has affected them. Other questions should address whether there were any witnesses or whether any other co-workers may have been subjected to the same or similar behavior. Repeat your notes back to the complainant to ensure you understood the allegations and captured the complaint accurately.
Interview witnesses.
Interview witnesses separately and remind them that your company encourages employees to participate in investigations without fear of retaliation. Inform witnesses that you are conducting an investigation into allegations of harassment and ask if they have witnessed or have been subjected to any inappropriate conduct. If they have information pertaining to the harassment, ask for the specifics of what they observed before, during, and after the alleged incident.
Interview the accused.
Explain the accusations that have been made against the individual. Describe the investigation process and assure them that no decision has yet been made with regards to the merits of the complaint. Ask the individual for their version of events and whether there are any witnesses or evidence that may corroborate their story. Ensure that the individual provides a response to each of the complainant's allegations.
Gather evidence.
If there is any evidence of the alleged misconduct beyond witness statements, such as emails, instant messages, or video surveillance, take all necessary steps to protect and preserve it. It is a best practice to preserve all business records, whether in paper or electronic form, as soon as you learn about a dispute. This is especially important if you reasonably anticipate a legal claim. Consult legal counsel to ensure appropriate holds are placed on all relevant documents and information.
Evaluate credibility.
The resolution of harassment complaints often depends on the credibility of those involved in the investigation. Establish and use guidelines for weighing the credibility of the parties in an investigation, such as the consistency of the each individual's statements, any corroborative or contradictory evidence, and other relevant factors.
Prepare the report.
When preparing the investigation report, include a chronology of events, a list of witnesses, the facts of the case, and any evidence you may have been able to obtain. You may also be asked to include conclusions you have made regarding the incident(s) in question as well as recommendations for preventing this type of behavior in the future.
Take corrective action.
If the investigation reveals that harassment occurred, take immediate and appropriate corrective action. The corrective measure should help prevent future incidents and be proportionate to the severity of the misconduct.
Follow-up.
Notify both parties of your findings and the corrective action you plan to take, if applicable. When sharing results with the complainant, confirm that he or she has been properly heard and understood, even if he or she disagrees with the results. Additionally, set a timeframe to follow up with the complainant to ensure the conduct is no longer occurring.
Conclusion:
Because of the importance and sensitive nature of harassment investigations, the process must be handled with extreme care. Consult legal counsel as needed.
