“Must-haves” for your harassment investigation
June 08, 2015
Last week, I posted about harassment “must-haves” for employers, and talked in detail about the first two: a good policy, and training. This week I’d like to talk about “must-have” no. 3 – a prompt, thorough, and fair investigation.
PROMPT. “Prompt,” in the context of a harassment investigation, means that you act as soon as you reasonably can, and if you have to delay, you have a very good excuse and take whatever “stopgap” measures are necessary to prevent further harm from occurring in the meantime.
The general expectation is that if an employee makes a complaint of harassment, you begin the investigative process almost immediately. This doesn’t mean that you determine guilt or innocence immediately, and certainly not that you necessarily fire anybody immediately (or ever), but it does mean that you get the process started immediately. (Yes, I know I’ve used the word “immediately” three times in this paragraph – make that four – and that is deliberate.)
As soon as possible, you should get the full story from the complaining employee and determine which interim actions to take while you complete the investigation. (For example, do you need to separate the complaining employee and the alleged harasser while you continue to investigate?)
Once in a blue moon, there are good reasons for a delay in getting started. For example, these excuses might fly:
*”When Tiffani made her complaint, our Human Resources representative was on her honeymoon in the Cayman Islands with her cell phone off, and we don’t have an in-house attorney, and our outside attorney only does incorporations and taxes.”
*”Trey made his complaint 20 minutes before the plant went into full shutdown for the month of July.”
These probably won’t fly:
*”Well, we were in the middle of year-end closing, and we were so busy . . .”
*”Well, our HR rep was on her honeymoon in the Caymans.” (When you had other qualified people who could have handled the investigation in her absence.)
*”Well, we wanted to see whether the harassment got any worse before we stirred the pot.”
*”Well, the dog ate my homework.”
THOROUGH. Talk to the complaining employee(s) first, and to the accused employee(s) second. Get names, places, dates, times, and context.
If the accused employee admits it, you’re about done! No need to talk to anybody else, unless you have reason to believe that the accused employee may have been victimizing others.
Once you’ve talked to the main parties, call in all witnesses identified by them. (One at a time.) I would start with the witnesses identified by the accuser. Sometimes you may have to ask questions indirectly, especially if you don’t want to poison the relationship of the accused with other employees. If you’re in this situation, you can ask open-ended questions like, “How does everybody work together in your department? Have you ever seen any behavior that you think violates our harassment policy, or that you think is inappropriate? Can you tell me about it?”
Often, the witnesses will identify other witnesses. “Well, I never saw anything, but Tom works in that area, so you may want to talk to him.” Be sure you talk to all of the “second-tier” witnesses identified by the first tier. And if the second tier identifies some “third-tier” witnesses, talk to them, too. And so on and so forth.
Depending on the circumstances, you may also need to review other information, such as personnel files, notes taken by the parties, voice mail messages, emails and texts, and the like.
Even if you are the most experienced, skilled investigator there is, it’s never a bad idea to let another trustworthy individual review your investigation to make sure you haven’t missed something. No one is infallible. (Well, no one except the Pope.) The reviewer could be another HR person, an in-house lawyer, outside employment counsel, or someone else in a management-level position who knows something about employment investigations.
FAIR. Ideally, the person conducting the investigation will not know the parties very well. If not, then the investigator should find it easier to keep an open mind and not make assumptions based on what he or she knows about the parties’ personalities and reputations.
Sometimes, though, a blissfully ignorant investigator is not possible. In that case, the investigator will need to put aside what he or she already knows about the individuals and be as objective and fact-based as possible. Remember: Even a “floozy” can say no and mean it. And even the former Speaker of the United States House of Representatives can go off the straight and narrow (allegedly).
Listen to both sides, and listen to what the witnesses have to say. Take everybody seriously.
Remember, at the investigation stage, you should not be making judgments about who’s right and who’s wrong. That comes next week, when we’ll talk about Harassment “Must-Have” No. 4 – Substantiation and Appropriate Action. Don’t miss it!
. . . AND ALSO OF INTEREST . . .
Our Affirmative Action guru Cara Crotty has a comprehensive review of the government’s proposed guidance, issued this week, interpreting President Obama’s
Federal Contractor Compelled Self-Incrimination “Fair Pay and Safe Workplaces” Executive Order. If you are a federal contractor, you need to read this.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.