Investigating Harassment Complaints —Fiorenza
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:
When did it take place?
Where did it take place?
Who was there?
Who saw it or heard it?
How was the complaining witness affected?
Was this an isolated incident?
Detailed notes of all questions asked and all answers should be kept. The investigator should never rely on his/her memory. The notes should be dated to demonstrate that the investigation was performed promptly. At the conclusion of the interview, the investigator should prepare an initial report of the complaint, based on the interview of the complainant.
Assembling the facts. Keep a time line of the events that took place during the incident. This will help the investigator better analyze the testimony of the complaining witness, as well as the other witnesses, and help further refine his/her questions. If the timing of events varies among the witnesses, the witnesses are either mistaken or lying. The time line also helps the investigator to reconstruct what happened in greater detail.
Identify and gather any documents or other physical evidence promptly before either can be destroyed. Visit the site where the incident took place. This also helps refine questioning and helps the investigator determine which witnesses are reliable. For example, if a witness says she was leaning against a file cabinet when she observed the incident, by visiting the site the investigator can determine whether the witness had an unobstructed view of the incident. Like the time line, it also helps to reconstruct the incident with a greater level of detail.
Interviewing eyewitnesses. Once all the facts are assembled, the investigator should separately interview eyewitnesses and corroborating witnesses, if any. Also investigate any corroborating details specified by the complainant and obtain any additional, available documentary and other evidence relevant to the complaint.
What did you see or hear?
When did this occur?
Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
What did the complainant tell you?
When did she/he tell you this?
Do you know of any other relevant information?
Are there other persons who have relevant information?
Questioning the alleged harasser. The investigator should then interview each person accused of engaging in the misconduct, and will also make a written report of this interview or interviews. It may be a good idea to tape record these interviews. The investigator’s questions may include:
What is your response to the allegations?
If the harasser claims that the allegations are false, ask why the complainant might lie.
Are there any persons who have relevant information?
Are there any notes, physical evidence or other documentation regarding the incident(s)?
Do you know of any other relevant information?
Determine credibility. Throughout all interviews, the investigator must determine the credibility of the witnesses, including the complaining witness and the accused. He/she should ask questions that have verifiable answers. For example, ask what time the incident occurred. If the accused was not at work at that time and company records can verify it, the witness is either mistaken or lying. In either case, he/she is not a good and reliable witness. Also try to determine whether the witness has any biases or improper motives in favor of or against the accused.
The conclusion. Analyze the notes and/or tape recordings of the witness interviews, as well as any documentary or other evidence obtained. Determine which witnesses are credible in light of all the information obtained.
Make a new time line of all uncontradicted facts. Then, in the appropriate time-slot on the time line, include the contradicted events. Based on the credibility of the witnesses and the physical evidence (as well as common sense), determine what happened.
Draft a report concerning the incident. The report should be used in drafting the charges against the accused where the investigator has concluded that the accused committed the alleged violation. Remember that this report may have to be produced in court some day, so choose your words carefully.
The investigator should be prepared to testify at any disciplinary hearing concerning the incident. This testimony can include all the facts and circumstances surrounding the event(s) regarding the charge(s) together with the precise steps taken by the investigator in performing his/her role. PI
About the Author
Nicholas J. Fiorenza is managing partner of the employment law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., and longtime association counsel to the Printing and Imaging Association of New York State and its members. He is also president of Delacroix Consulting Group, the human resources consulting component of the law firm. For more information, visit www.ferrarafirm.com.