How an organization goes about investigating a claim of sexual harassment is extremely important and can lead to better outcomes when an incident occurs. Advice for successful investigations was included in the recent HCCS webinar, “Preventing Sexual Harassment: The Importance of Workplace Training.” Attendees learned from business and employment law attorney Jennifer Kearns, a partner at Duane Morris, who discussed how a formal, comprehensive training program on preventing sexual harassment in the workplace can help protect business leaders, their employees, and their organizations. Kearns offered the following suggestions:
Take action quickly.
First of all, whenever there is a claim, you’ve got to get on it and do it promptly. There’s nothing worse than sitting on an accusation or taking too much time, because the victim is likely going say, “You didn’t take me seriously.” You and your organization have an obligation to be prompt. It is likely that many will think not being prompt is showing you don’t care.
Keep the people involved separate.
Never have the accuser and the accused face off. The worst possible reaction would be to say, “I’m going to just bring them in the same room to make the victim say what happened and see what the accused says.” That sort of scenario is the kind that creates additional legal claims against the organization like intentional infliction of emotional distress.
Consider using an experienced investigator.
If there is a lawsuit, the experience and qualifications of the investigator and the way the investigation was conducted are going to come under serious attack by the victim’s lawyer. You can engage an outside attorney to do an investigation. The biggest advantage there is that the attorney’s conclusions and any written report are privileged. They are for the company’s eyes only and not subject to disclosure to the other side. The attorney is considered a trusted adviser, and attorney-client privilege protects communications between lawyers and clients. That said, the cons include the expense involved in hiring an outside attorney as investigator. Also, non-disclosure of the report may lead to an argument that the company is hiding something. Please note that if the claimant or the victim does sue the company, the attorney you had do the investigation and his or her entire law firm may be precluded from representing the company.
If you use an internal investigator make sure that person is adequately trained.
The advantages are there’s no additional expense, and the person knows and understands the company’s business. The cons are that the person might not be completely neutral. You want to make sure that person has adequate training to conduct an investigation. If they don’t, the company will be attacked for using someone internal who didn’t have the requisite level of experience. Finally, an HR professional acting as investigator may find his or her working relationships impaired if they conclude that there was unlawful harassment.
Insist on one-on-one interviews.
Group interviews are not appropriate for an investigation. If any employee, the victim, or anyone else says, “I want to have an attorney present while you interview me,” allow it. The accused also may be entitled to say, “I want to have another co-worker present,” if the interview may result in disciplining of the accused. You want it to be quiet, without distractions. Accused, accuser, and witnesses need to be interviewed individually.
Be cautious about taking notes and recording interviews.
Remember, notes may or may not be privileged depending upon who your investigator is. If you’re going to record the interview, you’ve got to make sure everyone participating is aware of the recording and consents to it. It is best to get that consent on the record before you ask anything else.
Avoid drawing conclusions.
Don’t reach conclusions until you’ve completed your investigation. You should also be asking witnesses as you interview them if there’s anybody else to whom you should talk. A decisive conclusion isn’t always possible, and you may conclude the behavior that occurred was inappropriate but still might not have been severe or pervasive enough to amount to harassment.
Consider corrective action carefully.
If the organization concludes that conduct was severe or pervasive enough to alter working conditions, the company’s only obligation is to take steps that are reasonably calculated to ensure it doesn’t reoccur. The company is not obligated to terminate the accused, and the victim doesn’t get to dictate outcomes. Kearns mentions cases where the victim said, “You have to fire this person.” It’s up to the company to determine whether there is some other level of discipline will ensure that the behavior doesn’t reoccur. However, business needs don’t allow a company to turn a blind eye when a powerful employee is the one doing the harassment. To do so opens you to punitive damages.
Results of an investigation should only be shared with the parties directly involved.
The accused and the accuser are entitled to know the outcome, but the witnesses aren’t. The accuser is not entitled to control the outcome, and you should advise them that you’ve taken corrective action that you believe will ensure no reoccurrence. Also, communicate that you need to monitor to make sure there’s no retaliation if the parties continue working together.
Kearns closed by stating that a properly handled investigation will satisfy your obligations. If the employee who complains has already quit and you have since determined that unlawful harassment occurred, offering the person reinstatement at least is a way to minimize the claim of lost wages. Even if the accuser refuses you can at least say, “We told them we had fired the harasser. We offered him or her the job back, which they declined. In that case, any further wage loss is on them, not on us.”
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