CONDUCTING INTERNAL SEXUAL HARASSMENT INVESTIGATIONS

by Lisa M. Passarello, Esq., and Bill Adams, Esq.,
Eckert Seamans Cherin & Mellott, LLC

A sexual harassment charge is a headache no company needs. It can entail costly litigation and liability, impaired productivity, and damaged morale. Once a charge is made, an employer must conduct a prompt, thorough investigation of the charges. It can protect itself from liability by following the proper investigation procedure.

Every sexual harassment complaint must be investigated, no matter how minor or insignificant it might appear, even if the person who complained does not want to pursue the matter further. An individual trained in the procedure should conduct the investigation. An attorney with expertise in employment law should be involved either as the investigator or as a consultant.

The investigation should consist of several stages:

Meet with the complainant. The goal of the initial meeting with the person who complained is to obtain a thorough and detailed explanation of the complaint. The investigator should:

• Learn the identity of the alleged harasser.
• Get a thorough explanation of the conduct that is the subject of the complaint, including who did and said what and where and when the actions occurred.
• Ask only non-judgmental questions – the object is not to make the complainant feel like the target of the investigation.
• Don’t comment on the accused’s reported conduct.
• Get names of witnesses.
• Ask whether the complainant has any documentation, notes or other substantiating materials, e.g., telephone records, calendars, letters, gifts, photographs, etc.
• Ask whether the complainant confronted the harasser or let the harasser know that the behavior was offensive and unwelcome. If so, ask when, how, and if there were any witnesses.
• Ask whether the complainant informed anyone else about the harassment.
• Determine what injuries or adverse consequences the complainant has suffered, e.g., medical, missed work, denied promotion or pay increase.
• Ask whether the individual is aware of any other individuals who have been harassed by the same person.
• Ask whether the complainant reported the harassment to any partners or supervisors. If so, ask to whom, when, and what was the response.
• Ask the complainant what it would take to remedy the situation to his or her satisfaction.
• Emphasize that the complainant should not discuss the complaint or investigation with anyone; reassure the complainant that there will be no retaliation and that the information will not be disclosed to anyone, except as needed to investigate the complaint properly.
• Ask the complainant to write the complaint in as much detail as possible and return it within a day or two.
• End the meeting by asking the complainant to contact you immediately if there are new incidents or signs of possible retaliation.

Evaluate the complaint. The preliminary evaluation is intended to determine whether the complaint involves unlawful harassment. For example, it is possible that the interview will reveal a personality conflict or a negative reaction to job performance criticism. Or the alleged harasser’s conduct does not come within the sexual harassment policy. If it is clear at the outset that a complaint should not be handled under this procedure, inform the complainant and close the matter.

The interview, however, may reveal a situation which, if substantiated, warrants further investigation. Some situations may require precautionary remedial action before further investigation. The employer may permit the complainant to take a few days of paid leave or to work in another area pending the investigation. This evaluation should be reviewed with the legal department.

Interview the accused. The second step in the investigation involves confronting the person accused of harassment. The following guidelines may be helpful at this stage:

• When scheduling a meeting with the accused – which should be done as quickly after the meeting with the complainant as possible – do not inform the accused of the reason for the meeting. It is important to get a spontaneous response.
• Initially, simply inform the accused that a complaint of sexual harassment has been made and ask whether he or she knows anything about it. Do not begin by laying out all the details of the complaint.
• Inform the accused of the allegations one at a time and get his or her response.
• If the accused denies the allegations, find out whether he or she is aware of any witnesses or other evidence lending support to the denial.
• From the accused, find out why he or she believes that such a complaint would be made (i.e., are there any ulterior motives or reasons for ill will?).
• Assess the accused’s credibility on the basis of eye contact, clarity of memory, responsiveness to questions, genuineness of reaction, etc.
• Clearly inform the accused that the complaint and investigation should not be discussed with anyone, and underscore the policy prohibiting retaliatory action.
• Instruct the person to have no contact with the complainant about the complaint.
  

Investigate further. If there are fact disputes that are material to the investigation and other persons have been identified as witnesses by either the complainant or the accused, interview those witnesses following essentially the same guidelines. Remind each person of the confidential nature of the investigation and the accusation. If the accused admits the material allegations, it is likely that no further investigation will be needed, and the investigator should move on to the remedial stage.

Keep the following points in mind during and after the investigation:

• Confidentiality must be respected to the extent that it does not impair the investigation.
• Do not repeat to anyone who does not have a need to know the accusations made by the complainant, since these could be potential liability for defamation or other claims.
• Take careful notes at all stages of the interview, either during the meetings or immediately after, so that there is a record of the investigation to support the conclusions and remedial action taken. The documentation should not become part of the personnel record to which others will have access, but should be maintained separately, as are medical records.
• Notes and other investigative materials (other than those involving a legal evaluation of the evidence) will not likely be privileged, i.e., they will be discoverable in any lawsuit arising from the situation.

Prepare the investigation report. Prepare a report containing factual conclusions of the investigation. It should be addressed to the president and chief operating officer. The accused employee’s direct manager or outside legal counsel should review the report before it is sent to the president and chief operating officer.

Judgments of credibility are acceptable where there is reasonable basis for judgment. In most situations there should be sufficient information available to permit a conclusion whether there was or was not sexual harassment.

The report should normally be shown to the complainant and accused after the remedial action has been decided, but do not give copies of the report to either. The report format may vary, but it should list each allegation and the accused’s response and the finding with respect to the allegation. Conclusions should be factual, not legal: the report may find that the accused’s conduct was offensive, unwelcome, and violated company policy, but should state that the conduct did or did not violate state or federal statutes. Aggravating and mitigating factors relevant to remedial measures may also be included. The report should not contain recommended disciplinary or remedial actions. It is not necessary to inform the complainant of the disciplinary action taken against the accused.

Take remedial action and follow up. When the report is completed, the investigator must recommend remedial action to the appropriate manager. The recommended action should be conveyed orally and documented only after there is agreement on what action to take. The employer is legally obligated (1) to take immediate and appropriate corrective action to insure that there will be no further harassment; and (2) to make the victim of sexual harassment whole.

If a complaint cannot be substantiated or refuted, both parties should be so informed, and the accused should be clearly informed of company policy. The complainant should be told that any future incidents should be reported immediately, as they are occurring, including any incidents of suspected retaliation.

If the conclusion is that there was sexual harassment, the company must take appropriate remedial action. This may include one or a combination of the following: a written reprimand, suspension without pay, mandatory training or counseling on sexual harassment, reassignment of the accused, demotion, withholding of a promotion, or discharge.

Remedies for the complainant may include reimbursement of any monetary loss, reimbursement of expenses for counseling, restoration of a job, or a paid leave. Remedial action should be unconditional, but limited to what is necessary to make the victim whole. A substantial cash payment for “pain and suffering” is often desired, but not typically warranted at this stage, unless the company failed to act in the face of previous complaints and there is clear evidence of psychic injury to the victim.

If it is concluded that the sexual harassment accusation was made for malicious or vindictive reasons, the complainant should be disciplined up to and, possibly including, discharge. This should be done, however, only in the clearest of cases.

Misconduct during an investigation, such as violating the confidentiality of the investigation, publicizing unfounded accusations, making demonstrably false statements, and the like may be grounds for disciplinary action.

Respond to an appeal. If either the complainant or the accused is dissatisfied with the conclusions of the investigation or believes that the remedial action is not effective or is excessive, that party may request that the president and chief operating officer review the conclusions or remedies. The review may involve as much or as little additional investigation as, in the judgment of the president, may be required to provide a meaningful evaluation of the fairness of the process and accuracy of the conclusions. The remedial action may be enhanced or diminished, at the discretion of the president. If there is a review, the fact of the review, the extent of any additional investigation, the outcome of the review, and an explanation for whatever action is taken should be documented and made part of the complaint investigation file.

If the investigation finds that sexual harassment did occur, appropriate remedial action should be taken as soon as possible. When a complaint cannot be substantiated, both parties should be so informed and the accused should be reminded about the company’s policy against harassment. The alleged victim should be told that any future incidents of harassment or retaliation should be reported immediately.

All documentation relating to the complaint and the investigation should be maintained in the complaint investigation file.

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