Tips for Investigating Sexual Harassment

Complaint Procedures
Investigation Procedures
Evaluating Evidence and Communicating the Decision
Disciplinary Action
Conclusion

Most employers now have an explicit policy against sexual harassment. Although having a clear policy is a good start, it is just the beginning of putting an effective program in place. Many employers have not planned an approach to the problem beyond creating a written policy. Advance planning helps employers achieve the goal of a prompt and appropriate response. This article is a roadmap of strategies to avoid panic when a claim of sexual harassment is made.

The Editors recognize that sexual harassment may involve harassment by females of males or same-sex harassment, but have used examples of male harassers and female complainants because most reported cases involve that scenario. The procedures in this article also may be used to address other forms of harassment directed at individuals because of their membership in a protected class.

Complaint Procedures

The complaint procedure for allegations of harassment can be incorporated into the employer’s normal grievance procedure or it can be a separate process. Using the normal grievance procedure can be the most efficient for administrative purposes, but special procedures may be needed for highly sensitive situations. For example, employees should not be required to make a complaint to their immediate supervisor if the supervisor is the alleged harasser or has allowed or condoned the alleged harassment. Employees should be permitted to complain directly to a neutral, uninvolved party, such as the HR Manager. At times, such as when senior management or the CEO is accused, it may be necessary to have the Board of Directors or some outside investigator handle the complaint. It generally helps to have a specially trained person oversee all harassment grievances. Complaints of harassment require quick action, objectivity, thorough investigation, timely and appropriate resolution, and (to the extent that is possible) confidentiality.

Investigation Procedures

Investigations must be conducted promptly for several reasons. The disruption caused by actual harassment or rumors can be substantial. Evidence and memories of witnesses may be less accurate as time passes. A complaining employee or unjustly accused individual may suffer increasing emotional distress the longer any resolution is delayed. This delay may lead to subsequent legal action and claims of damages for emotional distress. Furthermore, the courts have established that employers are liable for failing to eliminate sexual harassment about which they were, or should have been, aware. Thus, employers should investigate all complaints, even when they are skeptical. The following steps can help ensure an effective investigation:

1. HR Department Receives the Complaint. Supervisors or others who receive the complaint refer it to the HR Department without delay.

2. HR Department Chooses an Investigator. The investigator typically should be a human resources professional who is specially trained to conduct investigations and who understands both the legal and organizational definitions of harassment. Having the same person handle all these complaints can standardize the process and reveal whether other complaints have been received about the same person or department.

3. Contact Between the Parties is Reduced or Eliminated. Both the complaining employee and the alleged harasser should be told to avoid contact with one another, and ways to minimize contact should be implemented. A transfer of either person may be appropriate during the investigation as long as neither suffers a reduction in pay or benefits.

4. Parties and Witnesses are Interviewed. The complaining employee and the alleged harasser should each be given a chance to tell their versions of the facts. Generally, the complaining party should be interviewed first to identify important details and witnesses. She should be told that details, although possibly embarrassing, are needed for an accurate investigation. The complaining employee should be offered counseling or other assistance in order to deal with the emotional aspects of the case. She should also be encouraged to report any forms of retaliation or continuing harassment.

The interview with the alleged harasser should be approached objectively. He should be allowed to respond to each allegation and should be told about the type of disciplinary action that may be taken if the allegations are true. The investigator should emphasize that no decision has yet been reached and that his account is crucial for making the correct determination. If the alleged harasser is uncooperative, he should be told in a nonthreatening way that his failure to cooperate will be considered as obstructing the investigation and may result in discipline, regardless of the investigation’s outcome.

Witnesses should be told as little as possible about the details of the complaint in order to protect confidentiality and reduce the employer’s exposure to defamation claims. They should also be informed that failure to cooperate can lead to discipline and that they will not be retaliated against for cooperating.

Each person who is interviewed should prepare and sign a statement outlining the information they have provided, if they do not object. If they object to signing, the objection should be witnessed by a neutral individual. If the session is tape recorded or videotaped, the person being interviewed should be informed before questioning begins. When physical violence or sexual assault are alleged, both parties should be told that reports will be made to the appropriate legal authorities.

Once the initial interviews have been conducted, individuals should be questioned again based on the corroborating or conflicting testimony of other witnesses. Stories may change when the parties are confronted with evidence that they hoped would not be presented.

The following are some other points to remember when conducting an investigative interview:

(a) Remind the person being interviewed that there will be no retaliation for cooperation;

(b) Be and appear as nonjudgmental and neutral as possible;

(c) Ask open-ended questions and do not suggest answers to questions;

(d) Get as much detail as possible;

(e) Do not show outrage or dismay at any answer (this reaction may cause the story to change);

(f) Do not promise complete confidentiality or anonymity, or that punishment will be less severe if the employee confesses;

(g) Document as much as possible about the interview, including the person’s answers, gestures, appearance, accuracy of memory, and overall credibility.

5. Records are Separated from Other Personnel Files. Investigation records should be kept separate from personnel files in a "department file." The only item from the investigation that should be kept in an individual’s personnel file is a written recommendation of disciplinary action. This notation should appear in the harasser’s file only. Employers should note that these precautions are aimed at curbing the spread of sensitive information within the organization. Investigation files may be obtained by the opposing side in subsequent legal action.

Evaluating Evidence and Communicating the Decision

At the conclusion of the investigation, the employer must decide whether the alleged conduct occurred and whether the conduct was a violation of its harassment policy. An employer’s policy may prohibit conduct that is offensive even if it is not actually illegal. In cases where there is no corroborating evidence, the employer may still be able to make a decision based on the credibility of the two parties. For example, contradictory statements by the same person, or changes in one person’s story, may make a conclusion possible. However, there may be cases when the employer should not take action against either party because the evidence is inconclusive. Otherwise, the employer may find itself facing claims of wrongful discharge, defamation, infliction of emotional distress, or retaliation. Either party should be given the chance to appeal an unfavorable decision and to submit additional evidence. In communicating a final determination, the employer should: (1) document and list each reason for the decision; and (2) limit the communication to those individuals who are directly involved and any members of management who have a legitimate need to know.

Disciplinary Action

Disciplinary action should be taken if the employer concludes that its harassment policy has been violated. The discipline should reflect whether it is the first violation of the policy or part of a pattern of harassment. The nature and seriousness of the behavior should also be considered. The organization’s standard disciplinary procedures should be used and discipline should follow appropriate past practices. Employers should avoid the heavy-handed approach of suspending or terminating all violators without regard to the nature and degree of the offense. On the other hand, a weak response to severe harassment is likely to cause the complaining party to sue and may increase the amount of damages. Employees also should understand that false accusations and false information about harassment will be grounds for discipline, and possibly termination. However, it is important to convey this information in a way that does not discourage good-faith reports.

Written records of a finding of harassment should not state that the employee committed legally impermissible harassment. The harasser’s record should reflect only that he violated the employer’s sexual harassment policy or conduct policy. Stating that the employee was guilty of sexual harassment, rather than focusing on the policy violation, provides the harasser a chance to argue about whether his actions met the legal definition of harassment.

Conclusion

All claims of harassment must be taken seriously and investigated. Naturally, there may be some situations when it is clear that the behavior did not violate the employer’s policy even if it upset the complaining party. For example, a male employee may have done nothing more than show too much interest in a female employee’s personal life. These situations do not require a full investigation but will need some type of resolution that is understood by both individuals. Addressing every complaint prevents misunderstandings from turning into larger conflicts. It also sends a message to all employees about the organization’s commitment to protecting its workforce from harassment.