An ounce of prevention and a consistent and thorough investigation go a long way to decrease or eliminate an employer’s liability when harassment arises. While an employer is not expected to become a “policing agent” that monitors its employee’s every interaction, the employer is expected to take each and every allegation of harassment seriously and to conduct a thorough investigation of every claim. The consistent application of this process can relieve an employer from liability while the absence of such, can ring the death knell on an employer’s defense. Consequently, it is important that the following steps are taken if an allegation of harassment arises.
The first step in the investigation process begins before an allegation even occurs. Each employer should designate an individual that is the “contact employee” or “investigator” for allegations. While employees should always be told that they may go to any member of management to report harassment, the designated individual has specifically been trained on how to perform investigations. Traditionally, the investigator is located in human resources and conducts all of the investigations unless a conflict of interest arises. The employee that is the immediate contact should not conduct the investigation on his/her own. Rather, he/she should separate the parties, if the situation is serious enough to warrant separation, and immediately refer the matter to the designated investigator.
Once an investigator is informed of the matter he/she should take the following steps. First, the investigator should arrange to meet with the Complainant as soon as possible after the allegation has been made. A delay will make the Complainant feel as if the Company does not take the allegation seriously and can force the employee to file externally. As long as the complaint is internal, the Company has an opportunity to address the situation in a controlled environment. Once the complaint leaves the internal system a company’s control is limited.
Once the meeting is established, the interview of the Complainant should occur in a private and comfortable setting in which no other employees can see or hear what it being discussed. The investigator should inform the Complainant that the Company takes all allegations seriously, will thoroughly investigate the matter and will conduct the investigation in as confidential of a manner as possible. It is important to explain to the Complainant that due process requires giving the alleged harasser the opportunity to tell their side of the story and to know who is presenting the allegations against them. Likewise, the Complainant should be informed that the investigator may also interview other employees who either witnessed or have information regarding the alleged incident. It is then equally as important to reassure the Complainant that notwithstanding this requirement, you will make every attempt to limit information to only those that have a need to know the information and that the Company has a strict policy that prohibits retaliation for presenting a good faith allegation or participating in an investigation.
Once this initial information has been presented, the interview begins. The interview and investigation should always occur in a neutral and empathetic manner. Remember that the employee perceives that they have been aggrieved in some way and needs to tell you what happened. Let them. This is their opportunity to “get it off their chest” and your opportunity to gather as much information as possible. Be patient and listen to the employee’s story, it is through their statement that you will determine what questions are pertinent to ask. Always take notes while conducting the interview, don’t rely on memory as the investigation can be the Company’s strongest defense later on.
The most important questions are those that get to the heart of the allegation. A good rule of thumb to keep in mind when constructing questions are the 5 basic “Ws” we learned about as children, the Who, What, When, Where, and Why of the investigation. Who did the alleged harassing? Who was present? Who, if anyone, would have information regarding the allegation? What occurred? What would you like to see happen? What was your relationship to this person? What documents if any exist that substantiate or corroborate the allegation? When did this occur? Where did this occur? Why do you feel this occurred? The answers you receive will present you with the Complainant’s version of the incident, the history behind the incident and potential witnesses to interview.
The next step of the investigation requires the interview of the Respondent. The same essential steps should be performed regarding introductory information and procedure. However, since an allegation has been presented, questions can and should be drafted regarding the incident and the five “Ws.” In approximately half of the investigations, the Respondent will acknowledge that they participated in or initiated the subject of the allegation. However, the Respondent may also state that this behavior was innocuous. In these instances there is no dispute regarding the factual basis of the allegation but a dispute regarding intent. Consequently, it is usually then not necessary to interview witnesses. Rather, appropriate corrective action can be taken based on the circumstances and the employee’s past history. If a factual dispute does exist between the parties, it may be necessary for witness(es) to be interviewed. The witness interviews should also be performed in the same manner with the least amount of information being divulged. If factual discrepancies still exist, it may be necessary for the investigator to re-interview the parties.
Once the interviewee has finished detailing their allegation, it is best to always give them a “two minute” synopsis of their statement so that they may correct inaccuracies or provide additional information. Likewise, when conducting an investigation, immediately summarize the investigation notes in narrative form and send the interviewee a copy of the report so they can make any additions, deletions or alterations and more importantly, sign the report attesting that the report reflects the true and accurate version of the incident. This measure is done to ensure that the employee cannot later change their story in court or allege that they never met with the employer. (While empathy is important it does mean that protection is eliminated.) This practice should be performed for the Complainant, Respondent (alleged harasser) and any Witnesses.
Once the investigation has concluded, a determination of policy violation must be made. This determination should be based on the credibility of the parties and witnesses, including the existence of corroborating documentation or evidence. Corrective action can be creative and should be administered in light of the employee’s history and the seriousness of the offense. All results of the investigation should be kept confidential and the individual, department and/or entire organization should be given initial or refresher training on harassment and proper behavior in the workplace.
Sexual harassment/discrimination policies and procedures coupled with a consistent internal investigation mechanism, present employers with their strongest weapons for defense in litigation. Courts have consistently held that employers are not “policing agents” and not liable for their employee’s every interaction. However, employers may be liable for what they knew, should have known and what they did with information. A consistent and thorough investigation is the best evidence of that action.