SIMPLE STRATEGIES FOR CONDUCTING PROMPT AND THOROUGH SEXUAL HARASSMENT INVESTIGATIONS

Candy Wagahoff Dale

The Importance of Workplace Investigations

Under the Equal Employment Opportunity Commission Guidelines, employers are required to investigate hostile environment sexual harassment complaints "promptly and thoroughly" to avoid liability. Employers should be encouraged by the trend toward recognizing and rewarding such efforts. The distinction between the exonerated and the culpable employers is often the adoption and enforcement of an effective anti-harassment policy and complaint procedure and demonstrated swift and sufficient remedial action in case of violation. Often the employer's response is evaluated by whether it conducted a prompt and thorough investigation into the employee's allegations.

When Should an Employer Begin an Investigation?

A formal complaint of harassment or discrimination requires a response. However, an employer should not wait for a formal complaint if it "knows or should know" that a situation might constitute harassment or discrimination. For example, where there is an anonymous complaint, a manager's direct observation, or even a vague statement by an employee. Inaction in the face of such knowledge can defeat the defense of prompt and thorough action, and may even lead to liability. The longer the delay, the worse the result.

Who Should Do the Investigation?

The best person to handle workplace investigations may be a well trained human resource person. Many employers hire outside investigators if they have no one on staff who is qualified to do the investigations, or if the complaint seems confusing, particularly serious, legally complex, or simply requires the objectivity of an outside person. Being a good investigator requires a working knowledge of the applicable law, good listening and interviewing skills, the ability to be objective and impartial, the ability to sort through voluminous information to discover key facts, and the time to complete the investigation promptly and thoroughly.

Who Should an Employer Talk To?

The number of witnesses interviewed by the employer will vary depending on the nature and complexity of the complaint. At a minimum, the employer should interview the complainant. If there is any credibility to the complaint, the alleged harasser should also be interviewed. In cases where the alleged harasser flatly denies the charge, other witnesses should be interviewed with an eye to discovering corroborating or exculpatory details.

Key Factors to Remember Regarding Workplace Investigations:

The attorney-client privilege must be established at the outset of the investigation. Employers should discuss the attorney-client privilege with any counsel who may be involved in the process, and agree upon procedures to be used during the investigation to protect the confidentiality of communications. It may be possible to protect documents created as part of the investigation from later discovery if there is future litigation. However, recent cases seem to suggest that an employer's ability to protect the notes and reports of a workplace investigator is very limited, especially if the employer's response to the complaint is part of its defense.

Confidentiality is critical. The investigator and the employer must limit the scope of the investigation and of the dissemination of information related to the process, including the findings of the investigator. It is important to clearly instruct everyone involved in the investigation that they should not discuss it with anyone else in the workplace, except as necessary for the investigation to proceed. Also, the employer should set up a confidential investigative file and clearly mark the file and all of its documents "CONFIDENTIAL." Access to this file should be limited to only those employee who "need to know" about the information contained in the file. The process is only as good as the investigator. Never underestimate the skills required to conduct a thorough investigation, and then process the information to assess the credibility of the witnesses and make a sound recommendation to the employer. A good investigator will be able to do all of this while maintaining the integrity of the process throughout the investigation, a bad investigator may compromise the process from the very first interview.