Heightened attention surrounding sexual harassment has raised the stakes for employers to deal with problematic behavior and avoid the notoriety associated with sweeping misconduct under the rug.
As part of an effective response, employers must jump into action and launch an investigation whenever any information comes to light regarding harassment or other forms of discrimination, according to Whitney Harmon, Shareholder, and Jennifer Curry, Associate, both at Baker Donelson.
The investigative process helps employers ascertain the facts and learn what happened so they can address existing problems and prevent future misconduct, Harmon and Curry said in a recent webinar. Aside from the obvious benefit of ridding the workplace of harassment and discrimination, taking appropriate steps to deal with misconduct can help employers defend against legal claims or avoid them altogether.
One of the first things employers can do in response to harassment complaints is take interim action, which may include a transfer or physical separation of the parties, as well as leave. Involuntary interim action is fine for the alleged harasser, as long as it’s portrayed as nondisciplinary, Harmon said.
For the alleged victim, any such action must be voluntary in nature, or it may be seen as retaliation for bringing the complaint. It is “not for you to recommend” that the complainant be transferred, moved, or placed on leave, Harmon said.
For the investigative process itself, the first order of business is selecting an individual with several key characteristics to be the lead investigator. Harmon said this person should be experienced, impartial, and professional even if dealing with uncooperative witnesses. The ability to build a rapport is also important, as the investigator should be able to make those being interviewed “feel comfortable sharing information they have,” she said.
Another key factor to consider is the investigator’s level within the organization. Rather than having a low-level employee investigate a high-level employee, employers should consider bringing in outside counsel, Harmon said. She also recommends turning to outside counsel for harassment investigations if similar claims are the subject of pending litigation or a prior lawsuit, or if the employer was previously aware of the alleged conduct.
Tips for Interviews
Interviews offer an opportunity to gather information from the complainant, the alleged harasser, and potential witnesses. Rather than just ticking off questions, investigators need to stay flexible and alert during the interview and use follow-up questions, or they might miss important details. The last thing an employer wants is critical information arising later and being surprised because it wasn’t discovered during the investigation, Harmon and Curry said.
For all interviews, some key rules of thumb include clearly stating that the employer will not tolerate retaliation toward those making complaints or participating as witnesses, and steering clear of making any promises of confidentiality. The information will in fact be shared on a need-to-know basis, especially at the conclusion of the process, when the investigator prepares a report on the investigation and notifies decision makers about the findings.
Harmon and Curry offered different tips depending on whether the investigator is interviewing the complainant, the accused, or witnesses to the alleged harassment. For example, the questioning of witnesses should be open-ended to get them talking more.
Complainant interviews “might be painful,” but it’s important to obtain the alleged victim’s account of what transpired, including details on times, dates, and locations, Curry said. During the course of questioning, the investigator should be sure to note nonverbal behavior and reactions, such as defensive arm crossing or crying. The investigator should also find out what the complainant desires as an end result of the process.
When interviewing the accused, it’s important to remain impartial and unbiased. Harmon said investigators should be able to convey to those being investigated that they are going into this “without having their mind made up already.” They should use specific questions, and if there is evidence of harassment, it should be presented for the accused to respond to.
After conducting interviews and gathering other relevant information, it’s time to evaluate the evidence and reach a conclusion. Curry distinguished this step from reaching legal conclusions, such as “the manager created a hostile work environment,” which can be “detrimental later on [for the employer] if litigation ensues.”
A common challenge for investigators at this stage is that they’ve heard two different versions of events. When this happens, they will need to determine which is more supported by evidence. As part of their evaluation, they’ll have to weigh the credibility of witnesses by considering their past behavior, demeanor, and any motivation to lie.
The final step in the process is preparing a report on the investigation’s findings for the decision makers who will determine what disciplinary action or other remedial steps the company will take. When communicating about the outcome with the accused and the complainant, it’s a good time to reinforce the prohibition against retaliation.
One added note: Harmon and Curry refuted the idea that investigations are only needed if employees make formal complaints. Employers should put this process in motion whenever they become aware of harassment or discrimination, and this even includes situations involving informal complaints from employees who say they don’t want an investigation.
For more information on this topic, see Bloomberg Law’s Investigating an EEOC Charge (subscription required).
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