Guidelines for Investigating Sexual Harassment Complaints

Intake of employee claim:

• Listen to the charge. Don't make comments like, "You're overreacting."
• Acknowledge that bringing a harassment complaint is a difficult thing to do. Reassure the employee that he or she will not be punished for bringing the complaint.
• Maintain a professional attitude.
• Gather the facts; don't be judgmental.
• Ask who, what, when, where, why and how. Find out if the employee is afraid of retaliation. How does the employee want the problem resolved?

• Investigate immediately. Delaying or extending an investigation traumatizes an organization and makes witness testimony increasingly unreliable. Delay may also be viewed as an unreasonable response, increasing the likelihood that you will be held liable for the harassment.
• Remember that the manner in which the investigation is handled can itself furnish grounds for a hostile environment claim, so carefully document every step.
• Treat even frivolous-seeming claims seriously until you have established otherwise.
• Keep the investigation confidential. Emphasize to those involved that your discussions are not to be repeated to uninvolved parties. Warn of possible disciplinary action, if necessary.
• Limit the number of persons in the organization who have access to the information. Communicate strictly on a "need to know" basis.
• Ask questions so that information is not unnecessarily disclosed. For example, instead of asking, "Did you see Paul touch Joan?" ask "Have you seen anyone touch Joan at work in a way that made her uncomfortable?" Remember the purpose of the investigation is to gather facts, not disseminate allegations.
• If there is more than one allegation, treat each separately.
• To avoid defamation liability, never broadcast the facts of a given situation or the results as an example to others or as a training tool.

• Elicit specific details.
• Find out whether there was a pattern of previous episodes or similar behavior toward another employee.
• Get the specific context in which the conduct occurred. Where? What time?
• Find out if anyone witnessed the alleged harassment. Ask if there is any other evidence (letters, e-mail, voice-mail, photographs).
• Determine the effect of the conduct on the complainant. Was it economic, noneconomic and/or psychological?
• Determine the time relationship between the occurrence of the conduct, its effect on the complainant, and the time when the complainant made the report.
• Prepare a detailed chronology.
• Analyze whether there might have been certain events that triggered the complaint, i.e., promotion, pay or transfer denial.
• Determine whether there were any possible motives on the part of the complainant.
• Find out what the complainant wants.
• Explain to the complainant that the charges are serious, that the company will conduct a thorough investigation before reaching any conclusion, and he or she will not be retaliated against for making the complaint.
• Make no statement about the accused's character, job performance or family life.

• Obtain a statement from the accused.
• Identify the relationship of the accused to the complainant.
• Find out the history between the parties. Was there any prior consensual relationship? How long have they known each other? Is there a history of group or individual socializing?
• If the accused was a supervisor, indicate his or her job title, obtain a copy of the job description, and determine his or her specific duties at the time of the alleged harassment.
• Determine whether the accused directed or had responsibility for the work of other employees or the complainant, had authority to recommend employment decisions affecting others, or was responsible for the maintenance or administration of the record of others.
• You can expect the accused to deny the charges. Observe the reaction. Note whether there is surprise, anger or disbelief. Describe the details of the allegation and note the areas of disagreement between the testimony of both parties. If the accused denies the allegations, probe further to determine with the accused the background, reasons, and motivation that could possibly trigger the complaint.
• Find out if any witnesses can support the accused's side of the story. Ask the accused for any other evidence (letters, e-mail, voice-mail).
• Warn the accused that retaliation against the complainant is prohibited and can result in discipline up to and including discharge.

• Talk with the accused's supervisor to learn about any discipline problems and behavior patterns on the part of the accused or the complainant and to determine whether the supervisor had knowledge of any relationship between the parties.
• Did the complainant report the conduct to the supervisor? Was the supervisor in a position to observe the conduct? Should the supervisor have been alerted to the conduct: for example, was the conduct discussed in the presence of the supervisor or were there any rumors circulating?
• Determine whether there is any available documentation (letters, reports, memos) that would support the conclusion that the supervisor knew or had reason to know of the conduct.

• Obtain statements from any witnesses who support or deny any of the complainant's allegations. Be aware that often witnesses are reluctant to come forward out of fear of reprisal.
• Assure all witnesses that their cooperation is important, their testimony is confidential and that they will not be retaliated against for testifying.

• If harassment is found to have occurred, immediately take effective corrective action that is designed to stop the harassment. Restore any job benefits that were by the victim due to the harassment. Make sure any determination you make is well-founded and contained in documentation concerning the investigation.
• Apologize for the incident occurring, if that is appropriate.
• When attempting to remedy the conduct, avoid requiring the claimant to work less desirable hours or in a less desirable location. If you offer to transfer the complainant, try to get the complainant's consent and make sure the transfer position is substantially similar to the complainant's prior position. This helps ensure that the complainant is not being illegally punished for opposing discrimination or harassment.
• Consider the severity, frequency and pervasiveness of the conduct when imposing discipline on the harasser. There are several disciplinary options available, including:
  • oral and written warnings
  • reprimands
  • suspensions
  • probation
  • transfers
  • demotions
  • discharges.
• When imposing discipline on the accused, any forms of discipline short of discharge should be accompanied by a warning that similar misconduct in the future may result in immediate discharge. If no discipline is imposed, document the reasons why.
• Provide remedial counseling and training on sexual harassment at the site of the incident.
• Carefully and fully document the investigation, the discipline imposed, and any remedial steps taken.
• Meet with the parties to inform them of the company actions.

• Follow up with the complainant to make sure that the harassment has stopped. Promptly conduct another investigation if necessary. If the harassment continues, increase the level of discipline against the accused.
• Make follow-up inquiries to ensure that the victim and witnesses have not been punished for opposing discrimination or harassment.

What should you do if nobody actually saw or heard the alleged harassment? Because sexual harassment often happens in private with no witnesses, the credibility of the parties will often be the most important factor to consider in deciding whether sexual harassment has taken place. However, even if nobody actually witnessed the alleged conduct, other information may help you determine whether the allegations are true.

• Do coworkers have any other knowledge of the alleged harassment?
• Did anyone observe the victim's behavior shortly after the alleged harassment?
• Did the victim discuss the matter with anyone (counselor, doctor or close friend)?
• Did anyone notice any change in the victim's behavior at work or in the way that the alleged harasser treated the victim?
• Were other employees treated in a similar manner by the alleged harasser?

What if you cannot determine whether sexual harassment occurred? Ask the complaining employee for additional information tending to show that sexual harassment occurred. If no more information is available, reassure the complaining employee that he or she will not be punished for making the complaint.

• Advise the complainant that the company is committed to a workplace free of sexual harassment and that any subsequent incidents of sexual harassment should be immediately reported to management.
• Reemphasize to all parties involved in the complaint the company's strict policy prohibiting unwelcome sexual conduct in the workplace.
• Document that a complaint was received and an investigation took place, but it could not be determined if unlawful sexual harassment actually occurred.

What if the allegation of sexual harassment turns out to be false? Carefully determine if the employee deliberately lied or simply misperceived the conduct alleged to be sexual harassment. Do not discipline the complaining employee unless you are absolutely certain that the employee knew the allegation of sexual harassment was false at the time he or she reported it to management. Any discipline imposed upon the employee should be the same as that imposed for dishonesty in similar circumstances.

Are there special concerns if outside organizations investigate sexual harassment claims? Yes. According to a 1999 informal staff opinion letter released by the Federal Trade Commission, employers that hire outside organizations to investigate sexual harassment claims must follow Fair Credit Reporting Act (FCRA) procedures. That created practical problems for employers because the FCRA requires written disclosure and authorization of an investigative consumer report, and a copy of the report must be given to an employee before any adverse employment action is taken based on the report.

In 2003, the Fair and Accurate Credit Transactions Act (PL 108-159) amended the FCRA to provide that communications to an employer by outside third parties hired to investigate employee misconduct or compliance with the employer's preexisting written policies will not be considered "consumer reports." Thus, employers would not be bound to follow the FCRA's advance notice or permission requirements before investigating employee misconduct. However, if any adverse action is taken based on the communication, the employer is required to disclose to the employee a summary containing the nature and substance of the communication (although certain sources of information are protected).

Reprinted with permission. © CCH