Apr 5, 2021
In this age of #MeToo, it is more vital than ever to conduct proper investigations into complaints of sexual and other types of harassment in your workplace. To be effective, investigations must be timely, thorough, confidential (to the extent practical and as permitted by law), and transparent.
What constitutes a timely investigation?
To be timely, an investigation must begin as soon as you learn of the harassment and it must be completed as soon as practical, without sacrificing necessary thoroughness. The following issues should be addressed as you get started:
- To investigate or not to investigate? The answer is almost always YES, whether the complaint is oral or written, the incident isolated or repeated, you have one or multiple complainants, the incident occurred more than a year ago, the complainant doesn’t want an investigation, the complainant or subject is not your employee, or the complainant is not in a protected category.
- Choose your investigator. Determine whether it is appropriate for someone within the company to conduct the investigation, or whether you need a neutral, unbiased outside investigator – but not your defense counsel, who would be a fact witness in any ensuing litigation and thus precluded from representing you.
- Create a witness list.
- Discretely check witness availability.
- Request all relevant documents.
- Interview the complainant first and the alleged harasser last.
- Continually add to your witness list based on your witness interviews.
Now it’s time to complete your investigation. Be sure to conduct all witness interviews as soon as possible, review all relevant documents, and write your report as soon as you complete your interviews and any necessary follow-up.
What constitutes a thorough investigation?
To be thorough, you must:
- Work efficiently but don’t rush the investigation.
- Conduct in-person interviews when feasible, particularly of the complainant and subject.
- Add to your witness list as necessary.
- Circle back with witnesses when warranted.
- Request and review all relevant documents, including personnel files, emails, text messages, and social media posts. You may need to engage the services of a computer forensics expert or ask witnesses who are friends or connections with the complainant or alleged harasser to obtain non-public social media posts. Never attempt to “friend” or connect with anyone on social media to obtain these documents.
- Plug any holes in your report. Attach relevant exhibits. Written documentation is key.
- Make factual, not legal, conclusions.
- Enforce your company’s no-retaliation policy.
- Take appropriate remedial action.
Why should investigations be confidential?
Confidentiality maintains the integrity of the investigation and protects the parties involved. To ensure confidentiality, reveal the fact that an investigation is being conducted and the details of it only to those who need to know, and instruct your witnesses to keep the investigation confidential. However, keep in mind that non-supervisors may not be disciplined for discussing the investigation with co-workers. In addition, complainants may not be silenced as part of a settlement in such states as New York and California (a similar New Jersey bill is on the Governor’s desk as we write this). Finally, you will forego a federal tax deduction for any settlement payment you make if you require confidentiality.
What constitutes a transparent investigation?
Being transparent means promptly informing the complainant and alleged harasser of the results of the investigation. In response to employee demand, companies like Google are now informing all employees of the results.
You can help avoid lawsuits and workplace tragedies by conducting timely, thorough, confidential, and transparent investigations whenever your company is faced with a complaint.