Investigating Harassment Complaints —Fiorenza

WHEN AN employer learns of possible sexual harassment in the workplace, a prompt investigation is crucial. According to court decisions, an employer has a legal duty to investigate all complaints of harassment. Some courts have even ruled that employers have a duty to investigate, even where the victim reporting the incident has stated an investigation is unnecessary.

Employers would be wise to investigate any time harassment is suspected, including when there is no formal complaint pending. Even if the employer has no chance of avoiding liability for the conduct entirely, timely investigations and corrective measures can reduce the size of the award that a complaining employee may receive in court.

The investigator. Choose someone who is not a subordinate to any individual involved in the complaint. The assigned investigator should understand the laws of sexual harassment and should know how to prepare for and conduct interviews, as well as how to assess witness credibility. The following are some practical tips for the investigator:

Do not ask leading questions (i.e., questions that supply witnesses with the answer). Let them tell the story in their own words.

Consult with your employment attorney at this point, if necessary. However, the employer must be prepared to conduct the investigation itself. The person who conducts the investigation may be a witness in any litigation that ensues. Where the employer’s attorney conducts the investigation, the attorney’s notes and documentation are not subject to “attorney-client” privilege and may be obtained through the discovery process.

All interviews should take place promptly while the incident is fresh in the witnesses’ memories.

The investigator should plan the interviews carefully. If possible, he/she should prepare a detailed list of questions designed to prove or disprove the violation of a specified policy or law.

Interviewing the complainant. Start the investigation by interviewing the complaining witness, i.e., the individual directly affected by the alleged misconduct and asking him/her for the names of witnesses and all corroborating details. (In cases where the complainant prefers to speak to someone of the same sex about the alleged harassment, an attempt should be made to find a suitable person to conduct this interview.) Here are some questions, the investigator may ask:

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