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Apr 14

Checklist: A practical guide to investigating workplace harassment

From a good human resource website: www.thehrspecialist.com:

This year marks the 10th anniversary of the U.S. Supreme Court’s landmark decisions in Faragher v. City of Boca Raton and Ellerth v. Burlington Industries. Those decisions imposed a three-part obligation on employers to take affirmative steps to prevent, detect and remedy unlawful workplace harassment. 

One of the most important means of fulfilling this obligation is through effective investigation of harassment complaints. While it’s not possible to identify all issues that may need to be addressed in any given investigation, the following checklist should nevertheless provide useful guidance to employers conducting such investigations.

Preparing for the investigation

Select an appropriate investigator. Ensure that the investigator has time to devote to the investigation. Consider potential conflicts of interest (actual or perceived) and the possible need to use an outside investigator.

Secure and review potential evidence.
Although this list isn’t exhaustive, evidence may include documents, e-mails, computer files, hard drives, video recordings, surveillance tapes, audio recordings and voice mail. Issue “Investigation Hold” notices to suspend any scheduled record destruction. The last thing you need is an Enron shredfest.

Be aware that every investigation is potential evidence in a later lawsuit or administrative proceeding. Consistently prompt, thorough and effective investigations demonstrate the employer’s commitment to ridding the workplace of unlawful harassment, which is an important investigation goal.

Initiating the investigation

Confer with appropriate managers or supervisors in the workplace affected by the investigation. Manage their expectations by letting them know what will happen during the investigation. Secure their cooperation and support. Uncooperative supervisors or managers can kill an investigation.

Examine work areas and relevant sites to make note of relevant circumstances (e.g., the proximity of workstations, sightlines witnesses may have had, noise level, etc.). Take photos.

Conducting witness interviews

Give both the employee who came forward with charges and the alleged harasser an overview of how you intend to proceed during the investigation. Find out what the alleged victim’s expectations are and correct any misperceptions. Ensure that the alleged harasser understands at the outset that management has not already determined what happened.

Explain the purpose of the investigation to the witness, but be general so as to avoid influencing memory.

Tell everyone that full and complete cooperation is both expected and required. Each should sign an acknowledgment verifying that the information provided during the interview is true.

Interview each witness separately, out of sight and earshot of others.

Set a professional tone for the interview, and try to put the witness at ease. Don’t make the witness defensive, as this restricts candor. Avoid being confrontational or intimidating. Avoid agreeing or disagreeing with witnesses.

Utilize consistent interviewing techniques with all witnesses, but remain flexible. Adjust your interviewing techniques as needed according to each witness’s individual disposition, but try to avoid substantial differences in how witnesses are interviewed.

Ask open-ended questions; allow the witness to explain in his or her own words. On the other hand, leading questions can be useful at the end of an interview to pin the witness down on specific issues. Do not settle for general descriptions of behavior; press for specifics. Example: “You said he showed up for work in a bad mood. What did he do or say that caused you to reach that conclusion?”

Make note of information
relevant to credibility, but avoid recording actual conclusions regarding credibility. Observe subjects for implausible statements, questionable physical and verbal reactions, inconsistencies, etc.

Instruct the witness not to discuss interviews with co-workers or with other potential witnesses. Explain that confidentiality is necessary to ensure the integrity of the investigation.

Explain the prohibition on retaliation. Instruct the witness to report any perceived retaliation right away.

Prepare your interview notes professionally—they may be evidence in a later legal proceeding. Avoid including irrelevant information in your notes. Document facts and observations, not opinions.

Final tips

Avoid making legal findings. Your task as an investigator is not to decide whether a federal, state or local law has been violated. Rather, the focus should be on the employer’s policy. The investigator should decide whether anyone violated company policy.

The Supreme Court’s Faragher and Ellerth decisions—and 10 years’ worth of appellate and district court decisions interpreting and applying them—make clear that employers seeking to avoid workplace harassment liability must demonstrate their commitment to identifying and remedying such conduct when it occurs. Conducting meaningful and effective investigations into complaints of workplace harassment is a key to making such a showing. This checklist should provide useful guidance.

About Reed Tinsley, CPA

As a top advisor to physicians, I help increase practice profits by delivering hands-on, expert medical accounting/tax support, practice counsel, and revenue-building strategies. Read more →