Despite well-publicized and consistent jobsite training, accusations of harassment in the workplace still occur. Investigating those allegations must be fair, comprehensive, consistent, and objective in hopes of adequately resolving the situation and avoiding possible liability.
To ensure proper action during an investigation a few preparatory checks are recommended.
- Review the complaint. Determine whether a full, official investigation is required or whether lesser actions might be effective, such as meeting with the victim and the accused together to mediate differences.
- Review company policy documents. Has sufficient notice and training been provided to employees? If not, immediately schedule in-depth training.
- Review personnel files. Have similar accusations involving any of the current parties been made in the past? Determine if this is part of a possible pattern or is an isolated situation.
Once the decision to formally initiate an investigation has been made, secure all available venues of evidence, including but not limited to:
- Witness information;
- Security tapes if in existence;
- Computer files and/or emails; and
- Photographs of the incident locations and surrounding areas and exits.
Also, notify the supervisors of the complainant and defendant to ensure their cooperation. Ensure the accuser has reasonable expectations and understanding of the proceedings-that investigating does not mean official agreement with the complaint. Ensure the accuser’s full cooperation, often via a signed compliance notice.
Most often, the Human Resources Department manager conducts an investigation of harassment, but the company may appoint an outside entity. Human Resources should never conduct an investigation if there is even an appearance of a conflict of interest, compromised objectivity, or impropriety.
Ensure that all interviews are conducted the same way; some adaptation to circumstances can be acceptable, but refrain from asking different sets of questions to different groups or individuals.
Ensure all interviews are in a private, unobserved location. Openly recording the interviews is wise if allowed by company policy. If recorded, open the interview with a statement for the recording of all involved, date, time, location, and purpose of the interview. If a written statement is given, ensure the date, time, location, and purpose is noted and that both the interviewer and interviewee sign it. When possible, phrase questions to obtain more than a “yes” or “no” answer and follow up with additional questions to clarify answers.
Every harassment complaint should be treated with care, consideration, compassion, and integrity. Conduct investigations objectively, confidentially, and expeditiously. Above all, keep accurate records during every step, including follow-up training and meetings with involved parties and managers, as well as other company personnel. Document all actions and recommendations, including termination of employment of the harasser if dictated by fair company policy.
Quote: “Since an employer’s prompt and effective response to complaints can limit or entirely eliminate its liability in a discrimination, harassment, or retaliation lawsuit, it is imperative that employers have an effective mechanism to investigate and resolve problems in the workplace.”
Source: E. Jason Tremblay American Bar Association; Business Law Today, Volume 16, Number 1; September/October 2008
Quote: “A percipient witness is someone directly involved in the incident being investigated, an eyewitness to it or who otherwise has direct, firsthand knowledge of the matter”.
Source: Max Mueller The Manager’s Guide to HR AMACOM
American Bar Association; Business Law Today, Volume 16, Number 1; September/October 2008. “Properly Investigating Complaints of Harassment. How to Limit a Company’s Exposure” by E. Jason Tremblay]
US Equal Employment Opportunity Commission; Notice. Number 915.002. http://www.eeoc.gov/policy/docs/harassment.html
AMACOM; “The Manager’s Guide to HR” ©2009 by Max Muller; p. 87-165