Once an employer learns about an allegation of sexual harassment, whether the complaint is formal or informal, there is an obligation to investigate. The goal of the investigation is to gather the facts of the case and to determine whether sexual harassment has occurred. If the investigation reveals that harassment has in fact occurred, employers must take action to end the harassment and prevent its reoccurrence.
Because of the importance and sensitive nature of these types of investigations, the process should be handled with extreme care and legal counsel should be consulted as needed. The following are 12 guidelines for conducting an effective sexual harassment investigation:
1. Investigate promptly. The investigation should take place as soon as possible after discovering that harassment may have occurred. When possible, more than one individual should be involved in the investigation, including acting as a witness during interviews. Investigators should be instructed to remain objective and they must be trained on the investigative process.
2. Create a file. To begin, create a confidential file to document the complaint as well as the steps you take throughout the investigation process. This file should be kept in a secure location separate from personnel files.
3. Take all complaints seriously. It's important that employees feel comfortable reporting any instance in which they believe harassment has occurred. This can be undermined if employees believe their complaints won't be treated with the proper attention. As such, employers must take every complaint seriously and avoid any retaliatory action against complainants.
4. Prepare to interview appropriate parties. Prior to beginning the investigation, determine who will be interviewed and prepare a list of questions. Arrange to conduct the interviews in a private location and plan on obtaining signed written statements from each interviewee attesting to the information provided during the interview.
5. Interview the accuser. Those conducting the investigation should explain the investigation process, including their role as a neutral fact-finder. They should ask the complainant questions related to what happened, who was involved, when it happened, and how it has affected him or her. Other questions should address whether there were any witnesses or whether any other co-workers may have been subjected to the same or similar behavior. Take detailed notes and repeat them back to the complainant to ensure your understanding of the incident.
6. Interview witnesses. Start by informing the witness that you are investigating possible misconduct and ask if they have witnessed or have been subjected to any inappropriate conduct. If they have information pertaining to the alleged incident, ask for the specifics of what they observed before, during, and after. Avoid unnecessarily disclosing information pertaining to the investigation and stress the importance of cooperating fully as well as your commitment to maintaining confidentiality.
7. Interview the accused. Explain the accusations that have been made against the individual. Describe the investigation process and assure him or her that you are a neutral fact-finder and that no decision has yet been made with regard to the merits of the complaint. Ask the individual for his or her version of events and whether there are any witnesses or evidence that may corroborate it. Ensure that the individual provides a response to each of the complainant's allegations and advise the accused that retaliation against the complainant or any witnesses is forbidden.
8. Gather evidence. If there is any evidence of the harassment, such as emails, instant messages, or video surveillance, it's important to take all necessary steps to protect it. Implement appropriate security measures to ensure that evidence isn't destroyed or tampered with.
9. Evaluate credibility. Without a "smoking gun," the resolution of sexual harassment complaints often depends on the credibility of those involved in the investigation. Some things to consider when determining one's credibility include the consistency of the statements made, demeanor during the interviews, any corroborative or contradictory evidence as well as the individual's behavior immediately following the alleged incident.
10. Prepare the report. When preparing the report, include a chronology of events, a list of witnesses, the facts of the case, any evidence you may have been able to obtain, and the conclusions you have made regarding the incident(s) in question. You may also want to include recommendations for preventing this type of behavior in the future and, if you made a finding of harassment, any corrective action that will be taken against the responsible individual.
11. Take corrective action. If the investigation reveals that sexual harassment occurred, take immediate and appropriate corrective action. The corrective measure may include training, job transfer, suspension, termination, or any other disciplinary action appropriate based on the severity of the conduct. When administering any type of correction action, it's important to be consistent with how you have handled similar situations in the past.
12. Follow-up. After you remediate the issue, it's important to check in with the victim occasionally to ensure the harassment has not resumed. If necessary, take further corrective action and update the written report with any new developments.
Effective investigation procedures can not only help to uncover inappropriate conduct, but they can also serve to document your good faith efforts to respond to accusations of wrongdoing. When done with the necessary care, these investigations can be a powerful tool for preventing sexual harassment and maintaining a safe and productive work environment. Remember that all claims of sexual harassment should be taken seriously and you should consult with legal counsel as needed.
Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com
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