Today’s post is part 3 in the series on Sexual Harassment. The information I’m sharing was presented by Anita York at the Greater Harbor Area Employment Advisory Council seminar. Prior posts regarding protected categories and the responsibilities of supervisors can be found at https://affordablebookkeepingandpayroll.com/?p=1857 and https://affordablebookkeepingandpayroll.com/?p=1873.
Today’s post addresses what to do when investigating a harassment complaint. Please note, this information is intended to offer general information only, and is not a comprehensive set of instructions to be followed. Every situation is unique and requires an independent analysis of the circumstances involved.
The person investigating will generally speak with the complainant first, the accused second, and any witnesses third. The investigation must begin promptly, must be thorough, and must be fair. Prepare an investigation plan and determine which questions you will ask. Questions may include:
- What happened – in detail, including every incident or event? Anything else?
- What was said by anyone present? Anything else?
- When did it occur – how many times, how often, what date(s), time(s) of day, is it still occurring?
- Where did it occur?
- Who was present – who participated in any way? Who are potential witnesses? Anyone else?
- Did you see or talk to anyone right after it happened?
- Have you talked to anyone about this?
- Are you aware of anyone else engaging in this type of conduct?
- Is there anyone else I should talk to in order to help me investigate and understand what happened?
- Are there any documents or other evidence that might help me investigate and understand what happened?
It is critical that you document every step, every interview, and every communication throughout the entire investigation. Ensure that you remain neutral. After interviewing each person, thank them for speaking with you, explain that you will investigate the issue, explain the company’s policy regarding retaliation, and ask if they have any other questions.
Once you believe you have finished all interviews, have obtained any available applicable documents, and have taken any other appropriate steps to ensure you have conducted a thorough and impartial investigation, evaluate all evidence and reach your findings (factual determinations as to what you believe did or did not happen) and conclusion (determination whether one or more violations of company policy (or the law) occurred.
The determination will be based on all of the evidence available to you, and usually, credibility assessments. If there are credibility questions, objectively weigh the evidence and consider various credibility factors. According to the EEOC, these factors include (but are not limited to):
- Inherent plausibility: Is the testimony believable? Does it make sense?
- Demeanor: Did the person seem to be telling the truth?
- Motive to falsify: Did the person have a reason to lie?
- Corroboration: Is there witness testimony or physical evidence that corroborates the party’s testimony?
- Past record: Did the alleged harasser have a history of similar behavior in the past?
Make notes about how you came to your findings/conclusions. If evidence is contradictory, you must come up with a reasonable conclusion based on the evidence and credibility of the people involved. Report your findings and conclusions to management (if required based on your specific situation).
If you feel you need assistance in conducting an internal investigation, or wish to consider having a professional conduct the investigation, contact Anita York, partner with Scott & Whitehead at 949-222-0166 or [email protected].
Candy
