Samantha tells her supervisor, Judith, that she has been being harassed by the VP of Sales for the last six months and Samantha wants it to stop. Judith thought they were dating and is tempted to brush off Samantha’s complaints—but doing so could put the company at risk for a lawsuit.
Once an employer has notice an employee believes he or she is being subjected to discrimination or harassment, it has a duty to investigate. In fact, if there is any evidence of discrimination or sexual misconduct even if an employee has not actually complained, the company does not have the luxury of waiting for an “official” complaint. An investigation should be undertaken. Here are some tips to conduct that investigation:
- Confidentiality should not be assured to the complainant. Keep the investigation as confidential as possible under the circumstances, but sharing information on a need-to-know basis is usually necessary.
- Start the investigation promptly and document any necessary delays (witnesses out sick or on vacation for example).
- Once a complaint is made, the investigation must continue even if the complainant changes his/her mind. The company should continue until it reaches a determination as to whether improper activity occurred in violation of company policy, or not. Keep in mind that the complainant may be filing a complaint because he or she had a personal dispute with the alleged harasser, or because the alleged victim suspects a negative review is on the horizon. In short, the investigator needs to keep an open mind until all evidence is in.
- Make sure all relevant witnesses are spoken to and all evidence is received: complainant, accused, supervisors of each, any witnesses they name.
- Careful note taking is necessary and ultimately leads to a report being issued at the investigation’s conclusion.
- The investigation’s leader should have good working knowledge of the law, and should be an impartial person with some authority. The investigator is a potential witness in any litigation arising from the complaint.
- Legal counsel should work behind the scenes advising you, but should not lead the investigation.
- Schedule interviews in as discrete a fashion as possible. Choose private locations and space out the interviews if possible.
- Take a close look at the personnel files and history of both the victim and accused. The investigator should be aware of any history between them.
- Take every precaution while the investigation continues to prevent retaliation against the alleged victim. Separate victim and accused, if necessary. Emphasize to the accused that retaliation is prohibited!
- When interviewing the complainant get as much detail as possible: the types of behavior complained of, names of who was involved, timing, witnesses, physical or emotional effects. Speak with the witnesses identified.
- Determine whether the accused is aware of the company’s anti-discrimination/anti-harassment policy and what, if any, training on the subject that person received.
- Make no commitments, but ask complainant what solution they would like.
- Assure accused, when interviewing him or her, that although you cannot promise complete confidentiality, you will emphasize the need for it (for both accused and company). You should let him or her know that you are committed to keeping an open mind. Be sure to interview the accused’s identified witnesses as well.
- If a witness is uncooperative, he or she can be disciplined for not participating in the investigation. However, if you don’t allow an employee to leave an interview room when they ask to do so, the employee may claim false imprisonment.
- When all evidence is in, take a broad look at credibility and behavior of each witness – How consistent are they? Did they appear truthful? Does anyone have a motivation to lie?
- Consult with counsel, but most investigations should be reduced to a report which memorializes the investigation process. Keep a log during the process to track investigation actions. Gather information for the report from properly documented notes (which are discoverable in any litigation). Report should be factual and contain recommendations for actions, but not contain legal conclusions.
- Attach necessary evidence to the final report as exhibits.
- Make sure that the remedial action taken, if any, is appropriate. Do not overreact. If discipline is necessary, however, don’t be afraid to enforce it.
- Work with outside employment counsel at each step to be sure the company is taking sufficient steps to protect itself.
Employers are required under both state and federal law to conduct prompt and thorough investigations of employee discrimination and harassment complaints. Doing so can help provide defenses in any later litigation—or potentially avoid one in the first place when handled properly.
