Investigating Harassment Complaints

While promptness and thoroughness are critical, the law does not require any particular method for investigating a harassment claim. The same process is not best for each situation. Investigating harassment complaints is serious business. You are highly likely to have to explain what was done to a third party investigator or jury. You should always consult counsel when you undertake this kind of activity.

• The Right Investigator

o Choose the right investigator available for a specific case knowing the investigator later may be called as a witness. The types of investigators typically considered are:

• Member of human resources department

• Inhouse attorney

• Line Manager

• Internal audit, ethics or securities department staffer

• Private investigator or other outside consultant

• Regular outside counsel

• Special outside counsel

o If you want to try to have the attorneyclient privilege or the attorney workproduct doctrine cover the investigation, the investigator should be an attorney or a person acting at the direction of an attorney.

o In making a final selection, consider the attributes required by the case. These may include:

• Ability to understand the purpose and issues so the interviewer can formulate appropriate followup questions when new facts or issues arise during the interview.

• Knowledge of company policies, procedures, practices and rules.

• Interviewing skills.

• Effectiveness as an interviewer given the personalities and background of potential interviewees.

• Credibility.

• Objectivity and impartiality.

• Ability to take thorough, accurate notes which can be used as evidence.

• Ability to maintain confidentiality as appropriate.

• Ability to instill confidence in and work with the complaining party.

• Covering the Investigation With A Privilege

Employers often prefer to cover sensitive investigations with the attorneyclient privilege. The fact is that when litigation comes you will typically be forced to waive the privilege to prove you properly investigated the allegations, considered the facts and acted appropriately to prevent a recurrence. If the terminated perpetrator challenges the firing, you will again often find it necessary to waive the privilege to establish good cause or a legitimate nondiscriminatory reason for your decision. As a result, you may need to reveal the investigation process, notes and investigative report, and possibly the legal advice even if it contains privileged communications. In other words, do not count on the privilege.

• PreInvestigation Considerations

o Discuss the scope of the investigation with the appropriate management representative and counsel.

o Why is investigation required?

o Should all or part of the investigation be protected by privilege? What are the potential objectives of the investigation? Who should be part of the investigation team?

o Through whom and how should contacts with interviewees be made?

o What is the appropriate deadline for completing the investigation.

o Identify documents to be reviewed.

• Complaint and notes regarding it.

• Relevant rules, policies, procedures and instructions.

• Memoranda or notes about the incident(s).

• Managers' notes and files.

• Prior investigation files.

• Records of prior complaints against the alleged perpetrator.

• Records of prior complaints by the complaining party.

• Personnel files of individuals involved.

• Statements written by or obtained from witnesses.

• Relevant business records, such as time cards, calendars, diaries, tape recordings, photographs, logs, etc.

• Physical evidence, like samples.

o Identify potential interviewees and their relationship to the matter.

• Person(s) who raised the issue(s).

• Persons identified by person(s) who raised the issue(s).

• Persons identified by person(s) being investigated.

• Supervisors of persons involved.

• Witnesses.

• Others with relevant information.

• Authors of relevant documents.

• Coworkers of persons involved.

• If appropriate, other persons who reportedly have been subjected to similar activity.

o Decide order of interviews.

• Is there any reason not to interview the complainant(s) first?

• Should the alleged wrongdoer(s) be interviewed second, last or in some other order?

o Decide the format for recording information from witnesses.

• Contemporaneous handwritten notes of key points obtained from each witness.

• Typed writeup of key points obtained from each witness, prepared from the contemporaneous handwritten notes.

• Signed declaration under penalty of perjury.

• Statement written by witness in his or her own words.

• Contemporaneous shorthand or virtually verbatim notes of words spoken by each witness.

• Transcript prepared by a court reporter.

• Taperecorded interview.

• Videotaped interview.

o Establish a system for organizing and maintaining files.

o Decide the format for and matters to be addressed in the investigator's report, if any.

o Identify other investigatory steps.

o Review the investigation plan periodically for comprehensiveness.

• Techniques for Recording Information Obtained During Witness Interviews

o Start a new page for each interview.

o At the top, place the names of those present at an interview, the date, time and place of the interview. Sign and date the notes.

o It is generally appropriate to take detailed notes during each interview.

o Report matters asked of the interviewee and words spoken and facts provided by the interviewee.

o Do not include your interpretations, beliefs, assumptions, conclusions, etc. Rather than guess at reasons or intentions, ask the reason and record the response.

o In some investigations the investigator may need to resolve conflicts in information by deciding about the credibility of witnesses. Be careful. If you note things during an interview that impact credibility, record them on a separate document. Consider things like evasiveness, contradictions, blushing, other expressions, potential signs of anxiety like shaking or perspiration, defensiveness and other demeanor.

o At the end of an interview, review the points in your notes with the interviewee to confirm accuracy and learn whether the interviewee has anything to add.

o Review and complete the notes at the end of the interview. The notes should be legible and provide enough information to understand, when reviewed later, what was asked and what information was provided. Although it is not necessary to write in complete sentences, the notes should be free from misspellings or errors so that the interviewer is not discredited in litigation.

o Generally, tape recording interviews is not advisable. Tape recorders frighten interviewees and make them hesitant to share facts. The recordings arguably will not be privileged and the interviewer's voice, tone and failure to ask specific questions will be easier to criticize.

o If an interview is to be recorded, check for legal restrictions. Put the recorder in plain view on the table and get the interviewee’s consent to turn it on. When the recorder is turned on, say the date, time, place and participants, and have the witness affirm on tape knowledge of and consent to the recording.

• General Interview Techniques

o Prepare thoroughly before the interview.

o Decide what should be explored with the interviewee.

o Understanding the law, policy or guideline critical to reaching a resolution of the issue when you have the facts.

o Understand what facts are necessary to reach a conclusion.

o Decide what documents will help in reaching a conclusion or in determining facts and have copies to review with the interviewee.

o Prepare an outline of key questions.

• All incident(s) or matters the interviewee should be asked about and all details regarding each.

• Information the interviewee is believed to have.

• Information from others the interviewee can corroborate or refute.

o Make appropriate disclosures at the beginning of the interview and perhaps keep a written record showing they were made.

• State why the interview is taking place.

• Advise what role the interviewee may play in the investigation.

• Tell how the information received may be used.

• Explain that information obtained during the interview will be reported to those within and possibly outside the company who have a "need to know" it.

• Explain the seriousness of the investigation.

• Explain the importance of accurate information and the individual's obligation to provide truthful, thorough information.

• Caution that attempting to influence the investigation or reveal confidential information by discussing it with others can result in disciplinary action.

• If a union employee requests union representation and has a reasonable belief that the interview may result in disciplinary action, get a union representative.

• If a collective bargaining agreement covering the interviewee requires that the interviewee be offered union representation, offer it.

• If counsel is conducting this investigatory interview as an attorney for the company and is not acting as an attorney for the interviewee, say so.

• If applicable, say that the purpose of the communication is to allow counsel to formulate legal advice, the interview is privileged and confidential and the interviewee may not reveal any portion of it to anyone else. Specify steps the individual must take to protect the privilege.

• Say whether the employee must, may or is encouraged to have her own lawyer present.

• Caution that discipline could result. If an attorney is conducting the interview, consider whether it is appropriate to tell the "accused" that he or she may have private counsel present if wanted.

• If the interviewee refuses to participate or answer questions, explain the consequences.

• Tell the "accused" that the interview is designed to give the individual an opportunity to relate their version of the events and to advise management of any information it should consider before it completes its investigation. If the accused refuses to participate, management should tell the interviewee that the company will base its decision on the other information gathered during the investigation, the inferences drawn from that evidence and the accused's unwillingness to cooperate in the interview.

• Ask legal counsel whether you must or should advise uncooperative union employee witnesses that you would appreciate their talking with you on a voluntary basis, that they are not required to do so, that they may stop talking any time, that you are only interested in the facts, that you do not care if they support or do not support the union, that you are not making any promises or threats and/or that their employment will not be affected simply because they were or were not willing to participate.

o In investigations regarding specific events, cover all events that occurred during the relevant time in chronological blocks of time. Do not leave the time block until all details necessary to recreate the scene have been established. For each block of time cover:

• Exactly what happened?

• When did it happen?

• Where did it happen?

• Who was involved or present?

• Who else may have relevant information?

• How did it happen?

• Who did or said what?

• In what order?

• Why did it happen?

• Who is to blame?

• Could it have been avoided?

• Was this an isolated event or part of a pattern? If there has been a pattern, cover each prior incident.

• What impact, if any, has the event had?

• With whom has the event been discussed?

• Are there any notes, recordings, photographs, physical evidence or other documentation?

• Pin the witness down to facts: specifically what the witness saw, heard, did, smelled or felt (if physical contact was made with or by the witness). Distinguish what the witness has actual knowledge of from hearsay. Avoid conclusions; focus on detailed facts.

• Follow up on answers with appropriate additional questions.

• Develop questions to corroborate or refute information provided by other witnesses or evidence, typically without revealing the source.

• If appropriate, develop questions like: "If your position is accurate, then how can you explain?

• Ask the witness to list all individuals who may have knowledge of any of the events?

• What knowledge does the witness believe the individual possesses?

• From what source?

• Does the witness believe the individual was present when the incident took place? Heard about it from someone else?

o Use appropriate question formats.

• Typically start with openended questions. Move to more narrow, focused and even leading questions after the witness has sketched the limits of the events as he/she recalls them.

• Do not ask compound questions; ask one question at a time.

• Typically ask questions which force the person to relate events chronologically to ensure thorough coverage. Comparing different witnesses' chronological versions will help assess credibility.

• Save unfriendly or embarrassing questions until the end; beginning with hostile or tough questions usually causes the interviewee to be defensive.

• Do not conclude the interview without asking the tough questions, even if the interviewee is uncomfortable.

o Do not give the impression you disbelieve any witness or express an opinion about whether something inappropriate occurred during this factgathering process.

o Ask additional questions based on the answers to the preplanned questions.

o Obtain confirmation that you have a complete and accurate understanding of the interviewee's knowledge. Before excusing the interviewee, repeat the significant points obtained and ask for confirmation that the information is accurate and complete. Show that confirmation in the notes. If any information is not based on personal information, appropriately label it as rumor or conjecture.

• Review all significant information received with the person being questioned.

• Ask for all corrections the witness has.

• Ask if the witness has any other information that may be relevant

• Ask if there are any questions not asked that the witness feels should have been asked.

o Tell the witness that if they have forgotten and later recall any information or documents, the witness should call you immediately when additional information comes to mind.

o If you will be sending the witness a statement, declaration or memorandum for review and signature, explain what you will be doing and get a promise of cooperation. Alternatively, prepare and have the witness read, correct and sign the declaration before leaving the meeting.

o Confirm the interviewee's understanding that no threats or promises have been made.

o Stress the importance of not revealing the questions asked, information given or other information about the interview to others to ease a thorough, impartial investigation.

o If appropriate, make a general comment about the process of the investigation from that point on.

o Listen to any questions the person may have and answer if appropriate.

o Be cautious about making statements to the witness because they could be discovered in litigation. Avoid discussing theories, strategy, assessment or other evidence with the witness.

• Additional Strategies For Interviewing Complainants or Purported Victims.

o Explain the objective of the meeting.

• The company is committed to compliance with the law and its policies.

• The company will conduct a prompt and thorough investigation to decide whether inappropriate action has occurred.

• If so, it will be stopped and appropriate corrective action will be taken.

• There will be no retaliation against an individual for making an honestly believed complaint under the company's procedure or to a governmental agency or court.

• The interviewee is expected to provide a thorough, truthful accounting of what has occurred, and to identify all evidence and all individuals who may have knowledge.

• Do not promise confidentiality. Confirm that information will be shared with those who have a need to know.

• Make sure the employee feels comfortable with you as the investigator.

• Explain the fact that you have been trained on how to conduct investigations and do so regularly as part of your job.

• Have the employee confirm they are comfortable by asking the employee if there is any reason they feel you cannot be fair and objective.

o In sexual harassment investigations, consider the desirability of a female investigator for a female alleged victim because disclosure of information about sexual matters may be embarrassing.

o Consider asking the complainant to write down, either before or at the start of the interview, all incidents of improper conduct and all facts and witnesses. A handwritten statement by the complainant at this early stage before they have counsel who may recast the events in a more negative light is useful.

o In sexual harassment investigations, get a complete list of each act and each statement that the individual construed as sexual harassment, offensive or constituting a hostile environment.

o For each act and for each statement decide:

• When did this happen?

• Where did this happen?

• Who was there when this happened?

o Exactly what happened or exactly what was said? Get a description of the scene, from the first word or gesture up through the end of the incident or conversation.

o What conversation occurred with the harasser before the incident happened or the offensive statement was made?

o What acts between the complainant and the harasser happened before the incident happened or the offensive statement was made?

o What response did the complainant make to the harasser when the offensive act was happening and when it ended?

o What response did the complainant make to the harasser when the offensive statement was concluded?

o What did the complainant say to the harasser the next time they met him or her?

o Was anyone else present during any of the incidents or conversations? If so, who was present for each of them?

o Did the complainant ever say that they were offended or somehow displeased by the act or offensive statement?

o What did the complainant say to show their displeasure? What did the complainant do to show their displeasure? What was the harasser's response to the act or statement? When did the complainant show their displeasure? Did they ever specifically tell the harasser to stop? Did they ever specifically say that they found the conduct to be offensive or to form sexual harassment?

o Did the complainant speak with anyone else about the offensive behavior or statement? Who? When did this conversation take place? What did the complainant and the other person say?

o Did the complainant ever make any notes or record of the incident? Did they tape record it? When? What do the notes or recordings say? Where is a copy? Can we obtain one?

o What did the complainant do after the offensive incident or statement? Find out whether the individual was able to continue with normal activities.

o Did the complainant ever seek any medical treatment or counseling because of the incident or offensive statement?

o Also ask:

• When did the complainant first learn of our sexual harassment policy and complaint procedure? To whom did they first report the offensive incident or statement? If the individual did not use the complaint procedure promptly: why did they wait so long to use the complaint procedure to report the incident or statement?

• Did the complainant ever do anything they believe may have caused the harasser to believe they would welcome or at least not be offended by the incident or statement found offensive? Although this may be a sensitive issue, you may need to ask about gifts or cards the individual gave to the harasser; social interaction, dating or sexual relations the individual has had with the harasser; any dirty jokes or profane language the individual has uttered in the presence of the harasser, and any invitations the individual has extended to the harasser.

• What action does the complainant want the company to take? Why have they identified this particular action?

• Does the complainant believe they can work with the harasser? If so, is there anything we can do to help in resuming a positive working relationship with the harasser? If not, why do they believe they cannot work with the harasser? Are they willing to try to work with the harasser if you meet jointly with the two of them to discuss the situation and their future working relationship? Does the complainant have any other suggestions that may allow them and the harasser to work together successfully?

o Review important points before concluding the interview.

o Thank the employee for raising the issue.

o Reaffirm to the employee that the company does not allow retaliation or reprisal for making an honestly believed complaint.

o Ask the employee to keep the investigation and information provided during the interview confidential except that counsel and government officials responsible for investigating compliance may be advised, and the witness may testify in a legal proceeding regarding the alleged harassment.

o Tell the employee that you may be in contact from time to time and that the employee's continued cooperation is essential.

o Ask the employee for suggestions on how the issue can best be resolved. Also ask what the employee wants the company to do, but make no promises.

o Express the company's commitment to conclude the matter in a timely manner.

o Explain what followup documentation, if any, the employee likely will receive and what the employee should do with it.

o Confirm that all facts, evidence and persons with potential information have been revealed to the best of the individual's ability.

o Following the initial interview, consider whether it would be helpful to send a communication to the complainant with a memorandum or declaration setting out the important facts provided. Ask the individual to read, review for accuracy and thoroughness, correct, make appropriate additions to and sign the document before returning it to you by a specified date. The signed document can be very useful in ensuring a thorough investigation, discrediting later inconsistent claims and responding to legal claims.

• Other Matters To Be Covered with Alleged Wrongdoers.

o Identify and give the individual an opportunity to respond to each alleged improper statement or action.

o You need not reveal the source of your information.

o You should reveal the incidents and statements in full detail so the accused has a full opportunity to refute and disprove them. If complicated, state them in writing to ease understanding.

o Find out the extent and nature of the interactions the accused has had with the alleged victim(s).

• Have gifts, cards or notes been exchanged?

• Has there been a dating, sexual, social or working relationship? Has the alleged victim initiated or participated in any sexual discussions, jokes, gestures, etc.?

o Has the alleged victim ever shown any displeasure with anything the accused has said or done, or ever asked the accused to stop?

o Ask the accused for any facts that show anyone else may have a motive to fabricate the allegations against the accused.

o If the accused denies wrongdoing and claims that the person raising the issue is lying, explore possible reasons.

• Ask why the accuser would make the claim.

• Ask if anything has happened between the two individuals that would explain why one would make a meritless complaint.

o Give the accused an opportunity to provide explanations or mitigating circumstances.

o Ask the accused to identify all persons they believe should be interviewed as part of the investigation and what relevant information each is likely to have.

o Request that the accused provide to you all relevant documents and other evidence.

o Ask the accused what steps they believe should be taken to ensure a thorough investigation.

• Documentation

o Each investigation needs a separate file. Because the investigator's file may not be protected by the attorneyclient privilege or the company may choose to waive the privilege, accurate documentation should be carefully created and maintained.

o Typical components of an investigation file include:

• Log of investigator's actions and calls by date.

• Contemporaneous and final interview notes for each witness.

• All communications to and from witnesses, including complainants.

• All draft and final witness statements.

• All complaints.

• All documents that establish or refute the issues investigated.

• Relevant physical evidence, such as tape recordings, product samples, etc.

• Investigator's report, if any.

• Documents reflecting notification of investigation results and any remedial action.

o In creating notes, remember:

• Preserve the attorneyclient privilege or attorney workproduct privilege if available and wanted. Label such documents as "privileged attorneyclient communication" or "attorney workproduct."

• Think before writing. Only place facts received on paper. Avoid opinions or conclusions unless requested in a final report or required to assess credibility, doodles and notes on extraneous matters.

• Review all notes promptly after creation for factual, spelling and grammar errors. Correct errors to avoid embarrassment to the investigator and company.

• Documents, other than working drafts, should not be destroyed once an investigation has commenced.

• Working drafts of documents other than statements sent to witnesses should be destroyed when the next version is prepared following the company's document retention policy.

o Inform persons who may have relevant documents to keep them.

• Summary Report

o Some investigations require no written summary because the managers responsible for employment decisions interview the witnesses or read the investigation file in an uncomplicated matter.

o In more complicated cases, a summary report is a useful introduction for the decision makers. Such reports may include:

• Complaint or event that prompted the investigation, including name(s) and department(s) of any complainant(s) or victim(s).

• Issue(s) investigated.

• Factual findings on each issue.

• If conflicting information is obtained, identify the conflict and factors that may help resolve the conflict and seek advice from counsel before commenting on credibility.

• Key facts supporting findings made.

• Investigation timetable from inception, by date, including interviews conducted and other investigatory steps taken.

• Summary of critical information contained in each witness interview, relevant policy and other evidence.

• Identification of any injury apparently sustained.

• Any action taken.

• Recommendations, if the investigator has been asked to make them.

o The investigator's objective is to be neutral, objective, precise and thorough. Avoid mention of the content of any communication with counsel.