Chapter 4: Subject Interviews
When interviewing the subject of an investigation (“the accused”), investigators must take care not to give the impression that he or she is presumed guilty of any wrongdoing. In most cases, the subject will be interviewed only after the complainant has provided a detailed statement of what is alleged to have happened. Under such circumstances, it is natural for the person who has been accused of misconduct to react in a defensive manner. To avoid creating an overly confrontational atmosphere, it is important to reassure the subject of your commitment to fairness, accuracy and due process.
Interviewing the Subject
While avoiding any predetermination of the subject’s guilt, the investigator must make it clear that the company takes the complaint seriously and intends to conduct a thorough, impartial investigation. The subject should also be reminded of the company’s legal obligation to investigate. The investigator should inform the subject that the company is conducting an investigation with the aim of preventing any harm to the reputations of those involved. At the same time, you can reassure the subject that you intend to uphold confidentiality as much as possible and that you plan to gather all available facts before reaching any conclusions. This is also a good time to review with the subject any applicable corporate policies or zero-tolerance mandates, and to advise the subject that if found guilty of committing the reported offense, he or she could face discipline up to and including immediate termination.
Investigators must avoid becoming focused on a list of predetermined questions to the extent that it discourages interviewees from disclosing other pertinent information. Relevant issues can be explored with the aid of open-ended, non-leading questions. For example, an investigator might ask the accused to describe his or her working relationship with the complainant, or to describe the office environment. An investigator might choose to begin the interview in a non-confrontational manner by asking the accused to answer a series of standard background questions. Be sure to ask the subject about each specific allegation made by the complainant, but do so in a way that makes it clear you have not made up your own mind as to the accuracy of the allegations. Give the subject time to explain his or her side of the story.
Background questions provide a means for the investigator to gauge the subject’s willingness to answer questions as well as the reliability of his or her responses. Background questions help to create a relaxed environment. Asking open-ended background questions before shifting the focus of the interview to incident-specific questions also provides you with an opportunity to demonstrate your neutrality with respect to the investigation.
- How long have you worked for the company?
- What are some of the responsibilities of your role in the company?
- How would you describe the company’s culture? Is it supportive?
Prior to interviewing the subject, prepare a list of incident-specific questions based on the initial complaint and any additional information gathered during the complainant interview. It’s usually best to avoid quoting specific statements made by the complainant; instead, use information provided by the complainant as a guide to the areas you wish to explore with the subject. Once all of your background questions have been answered and you have reviewed the initial allegations, it is time to dig deeper into incident-specific questions.
Mandatory questions to ask the subject, as outlined by the EEOC in the “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors” publication, consist of the following:
Standard Incident-Related Questions:
- What is the subject’s response to the allegations?
- If the subject maintains that the allegations are unfounded, ask what might have motivated the complainant to file a false complaint.
- Are there any other individuals who might have relevant information?
- Can the subject provide (or is the subject aware of) any notes, physical evidence, or other documentation that might corroborate his or her version of the event(s)?
- Is the subject aware of any other information relevant to the investigation?
Before ending the interview, take a few minutes to review the subject’s responses and seek clarification of any points that remain unclear or ambiguous. If you have been keeping a written record of the interview, ask the subject to sign the document so as to confirm the accuracy of your notes. If you intend to have your notes typed up, or if the interview has been recorded in some other fashion, inform the subject that he or she will be asked to verify the accuracy of the information when provided with the appropriate documentation. Finally, end the interview by reiterating your commitment to protecting the subject’s confidentiality to the extent possible.