SEXUAL HARASSMENT INVESTIGATIONS

Your policies look good on paper, but are you prepared to conduct an effective investigation of workplace sexual harassment?  When you receive a complaint of harassment, you need to quickly commence and complete an investigation.  Of course, your approach and the questions you ask will vary depending upon the circumstances, but there are some basic guidelines that you should keep in mind: iStock_000008808702Large

  • If possible, use two investigators. One investigator may be designated the official note taker for any interviews, so that one person can focus on interview duties, such as asking questions and maintaining eye contact, and the other can concentrate on accurate note taking.
  • When interviewing the complaining employee, focus on the basic “who, what, when, and where” of what occurred. Ask the employee to identify any witnesses or documentation (e.g., emails, texts) that exists.
  • Ask the complaining employee if he or she is aware of any other alleged victims, and if he or she has filed a statement or made a complaint with anyone outside of the organization.
  • Allow the accused to give his or her side of the story, and find out if the accused is aware of any witnesses or documentation. If the accused denies the allegations, ask him or her why the complaining employee might lie.
  • Interview any identified witnesses, and ask objective, open-ended questions that allow them to tell you what they saw, without favoring either the accuser or the accused. Make sure the witnesses you talk with have firsthand, not secondhand knowledge (rumors) related to the alleged harassment.
  • Ask appropriate follow-up questions of the accuser, the accused, and any witnesses. Make sure that everyone involved is aware that the company will not tolerate retaliation for reporting harassment or for cooperating with an investigation.
  • Intermediate measures may be required while you are completing the investigation. For example, it may be appropriate to make scheduling changes to avoid contact between the involved parties, or to transfer the alleged harasser or place him or her on non-disciplinary leave with pay until the investigation is complete. The complaining employee should not be involuntarily transferred or otherwise burdened. Any such actions could be viewed as retaliation.
  • To the extent possible, keep harassment allegations confidential. However, you should not guarantee absolute confidentiality, because you cannot conduct an effective investigation without revealing certain information to the alleged harasser and witnesses. Information should be shared on a “need to know” basis, and records concerning any investigation should be maintained in a confidential manner.
  • Be consistent. Investigate all complaints thoroughly. Impose similar discipline for similar incidents. If possible, have the same person or group of people handle all complaints of sexual harassment.

 

 

Jami Suver focuses her practice in the area of labor and employment law.
 
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