Sexual harassment allegations are among the most sensitive and tricky investigations that a company must conduct. Allegations of sexual harassment must be assessed, investigated and resolved as soon as possible to ensure the behavior doesn’t continue. While preventing sexual harassment is the ultimate goal, immediate intervention followed by a swift and fair resolution is the next best way to stop the behavior and send a message to the rest of the company that harassment isn’t tolerated.
Looking for a quick and easy reference? Download our free cheat sheet: Tips for Better Sexual Harassment Investigations.
The complainant in a sexual harassment investigation may be in distress, embarrassed or angry and it’s important to treat these cases with discretion and tact. Many victims of sexual harassment prefer that the incident and ensuing investigation be kept confidential. This can pose some difficulties for investigators and the company.
General Tips for Sexual Harassment Investigations
- Report any complaints of sexual harassment immediately to the human resources department and/or to the department or person responsible for enforcing the company’s anti-harassment policies.
- Initiate an investigation into sexual harassment allegations as quickly as possible
- Ensure the complainant knows that the company is taking his or her complaint seriously and reflect this in your manner and professional conduct.
- Assign two investigators to sexual harassment investigation interviews – one to conduct the interview and one to take notes and provide support. Ensure at least one of the investigators is the same gender as the complainant.
- Ensure an unbiased investigation by assigning investigators who don’t have a relationship with the complaining employee, the subject of the allegation or any witnesses.
- Conduct all investigation interviews in a private place, away from other employees and management.
- Keep all details of the case confidential and be discreet about the allegations and the identities of the complainant and the subject of the investigation.
- Explain the company’s anti-retaliation policy to every person you speak to in the investigation and encourage them to report any retaliatory behavior they experience.
- Consider the need to separate the parties during the investigation, but be mindful of the danger of this looking like retaliation.
- Familiarize yourself with EEOC guidelines for unlawful harassment before beginning the investigation.
- Gather all the documents you need:
- company code of conduct and related policy documents
- employee files
- copy of the allegation
- any supporting documents
- Identify all parties to the complaint.
- Contact the complainant, the subject of the allegation and any witnesses to set up interviews.
General Tips for Harassment Investigation Interviews
- The second investigator should take notes during the interviews, or record the interviews for later transcription.
- Don’t promise confidentiality to any interviewees, but explain that you will do your best to keep the details of the investigation confidential.
- Take statements from interviewees when appropriate. Statements can be valuable evidence that supports or refutes the complainant’s story.
- Assess the credibility of each interviewee and document your assessment in your notes.
Dive deeper into this topic. Watch the webinar Investigating Sexual Harassment.
Interviewing the Complainant
- Interview the complainant as soon as possible after the allegation. This reinforces the importance of the issue and reassures him or her that the company is taking the allegation seriously.
- Acknowledge the sensitivity of the allegation and reassure the complainant that the company is serious about getting to the truth and preventing more occurrences.
- Find out how the alleged harassment has affected the complainant as well as the details of the actual event.
- Ask the complainant what outcome he or she would like to see.
Download our free cheat sheet: 8 Tips for Interviewing the Reporter.
- Interview the subject’s supervisor to find out about any discipline problems, behavior patterns or other clues and request any documentation that is relevant to the investigation.
- Interview any witnesses to the sexual harassment. Cover the “who, what, where, when and how” questions first, then ask about any other information they can provide that might help you find out what happened. For example, you could ask whether they saw the complainant immediately after the alleged incident and what was said.
- Try to get the witness to provide the identities of the accused and complainant before you disclose them.
- Ask for specific details of what witnesses saw or heard themselves.
- Ask witnesses whether they can think of anyone else who may be able to share information about the incident.
Interviewing the Subject of the Allegation
- Interview the subject of the harassment allegation last.
- Establish the relationship between the subject of the allegation and the complainant. For example, is the accused the complainant’s supervisor? Is or was there a romantic relationship between the two?
- Ask how long the two parties have known one another and whether they socialize outside of work.
- Be sensitive to the stressful nature of the situation and the repercussions of the investigation for the subject.
- Assess the reaction of the subject to the complaint. Is he or she surprised, angry, resigned?
- If the subject denies the allegation, ask if he or she can think of a reason that the complainant would make the complaint.
Evaluating the Evidence
- Consider all the evidence collected, including interviews, credibility assessments, documentation, etc.
- Re-interview witnesses to fill in any gaps in information or to probe further where you think there is more to learn.
- Come to a conclusion about what happened and document this in a detailed investigation report.
- Recommend corrective action if sexual harassment occurred and if the company has asked for recommendations. Ensure corrective action recommended can’t be seen as punitive to the victim, unreasonable in severity or retaliatory. It should also be consistent with discipline imposed for similar misconduct in the past.
- Follow up with the complainant and the subject of the allegation after the decision has been made to answer any questions or provide information they may need.
- A company is legally responsible for conducting a prompt, fair and thorough investigation sexual harassment allegations in the workplace. Failure to do this adequately can result in lawsuits, fines and erosion of employee trust.
- Assess what went wrong and how the company can prevent this from happening again.