Today in many organizations, the loss prevention function assists human resources in investigating allegations of sexual misconduct, bullying, and hostile workplace situations. A sexual harassment investigation is very different from that of a dishonest associate and requires a different set of skills and interview tools.
Where the investigation of theft may be accomplished by installing a video, examining inventory data, or looking at register media to establish the case, the sexual harassment allegations may require the interviewing of multiple people to establish a timeline and personal backgrounds or to retrieve memories of conversations or events.
At the end of the sexual harassment investigation, the ultimate decision of who is telling the truth might be based on the investigator’s assessment of the interviews conducted.
Organizing a Sexual Harassment Investigation
The investigation can begin in many ways, depending on how the outcry was received. Obviously, in some cases it would come from the victim, but it could also come from coworkers, anonymous sources, or relatives. The first complaint delivered to the company must be collected carefully and documented in terms of times and dates.
Generally, it is best to obtain a statement from the “reporter” of the event detailing the allegations and the parties involved. The statement could be taken in written form or recorded to preserve it in even more detail. If the incident is criminal in nature, such as a rape, the proper law enforcement authorities should be notified, and any evidence of the incident should be preserved and turned over to them.
Depending on the parties involved in the incident, it is likely that human resources, legal, loss prevention, or an outside investigator will be assembled to handle the investigation. There may be issues relating to attorney-client privilege and the protection of documents that should be discussed at the onset of the sexual harassment investigation. Attorney-client privilege can be a complex process that requires the in-house or retained legal team to make a determination if this is an important consideration. Regardless of their decision, the investigation needs to be handled in a confidential and expedient manner to reach a resolution of the case.
In general, the second step is the preparation of a list of people who will need to be interviewed and potentially the ordering of those interviews. There may be some cases where the complainant will provide such compelling evidence that the need to interview others may become unnecessary.
However, as a matter of providing due process for the harasser in an investigation, they still should be offered an opportunity to tell their side of the story before any decision on their continued employment is made. Lacking that compelling evidence, it is almost always going to be necessary to conduct a series of interviews with other employees who may have witnessed the events or heard the victim’s outcry.
Next, based on the initial complaint, investigators should consider what evidence might be available to substantiate or disprove the complaint. It is often useful to identify and obtain these items of evidence before proceeding with any interviews. Evidence should be carefully cataloged and preserved separate from the working case file.
The investigator should also establish background information on each of the persons to be interviewed, including their personality, performance, or other background information that might provide a context for their information. This background should also be conducted on the alleged harasser to establish the relationship between that individual and the complainant, plus any relevant documentation. The collection of this general information and any available evidence to support the initial complaint will provide a context for the upcoming interview with the victim, harasser, and other witnesses.
The next thing to do is to select the order of the interviews and their location. Sometimes the preferred order of the interviews will have to be altered for any number of different reasons, but the interviews should be scheduled so that there is an appropriate time set aside by each of the participants.
While there have been some labor rulings regarding asking people to keep the interview confidential, these types of cases are extremely sensitive and could have a devastating effect on the parties involved. So if there is any question regarding the legality of asking for confidentiality surrounding the interview, it should be discussed with your legal department.
The Mechanics of a Sexual Harassment Investigation
While investigations often differ in the number of potential witnesses and the order in which they need to be interviewed, it is essential to open the interviews with the person making the complaint. This first interview with the complainant will provide the basis for the objectionable actions and may assist the investigator with determining the order of the other interviews and locating the supporting documentation or evidence.
It may be that the first interview is not with the actual victim but with someone whom the victim approached shortly after the event and who felt compelled to report the alleged actions to management. Since the complainant in this scenario is not the victim but merely the reporter, the investigator must identify the victim and persuade that person to cooperate in the investigation. If the victim does not want to cooperate in the investigation, the organization must determine whether to proceed to investigate independent of the victim. In some situations, the company may determine an independent basis to substantiate events in the allegation’s investigation, and the investigation should be continued.
In either case, if the complaint is deemed worthy of continued investigation, an investigator should attempt to substantiate the facts independently and be appropriately skeptical of any information that appears biased or made on the basis of assumptions. Information that is biased or based on assumptions may ultimately be determined to be truthful and relevant, but it is only useful when it can be substantiated through other means.
In any workplace investigation, there is a need for confidentiality. Unfortunately, the National Labor Relations Board (NLRB) ruled in the Banner Health case that the company could not require confidentiality of the investigation from its employees as a blanket rule. The NLRB decision said that confidentially could be requested from those involved in situations where there was a danger of evidence being altered or destroyed or in situations where there was potential for injury to those involved. In light of this recent ruling, the investigator should seek a decision from the company’s general counsel or outside labor lawyers before asking those interviewed to keep the investigation confidential. If there is a decision to require confidentiality of those involved in the investigation, a clear set of reasons should be outlined to support the company’s decision to do so.
The victim and potential witnesses will undoubtedly be curious about the investigation and what others may have said during their interviews. It is the investigator’s job to obtain information, not to share it with others who don’t have a need to know. Sharing information may taint future interviews since witnesses may make assumptions or allow bias to creep into their memories. In short, the statements of other witnesses should not be shared, nor should there be an in-depth discussion of evidence for or against the alleged harasser.
The investigation should be carried out promptly and completed as soon as possible. It is generally advisable to apprise the victim and, if appropriate, the complainant that the investigation is ongoing and work is still being conducted. There is no need to discuss the direction or information uncovered at this point, but it reinforces the fact that the investigation is proceeding and taken seriously. Not updating the victim or complainant could lead to civil suits because they didn’t believe the company was pursuing their allegations.
In addition, timeliness is important to clear innocent people whose reputations could be sullied and to protect employees from any further misconduct if the allegations are substantiated. In the event of a civil suit alleging discrimination, retaliation, or harassment, the timeliness and thoroughness of an investigation can mitigate some of the organization’s liability.
Certainly, the most thorough way of documenting what went on during the interview and the information obtained would be through recording the conversation. This can be valuable since others can hear firsthand what the victim said and the emotions at play as the story was told. However, many organizations have a blanket policy not to record interviews or allow those being interviewed to record the conversation. Again, the National Labor Relations Board recently decided that an employee can record conversations (Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago). If the subject of an interview wants to record, the investigator should consult with the organization’s general counsel, outside labor lawyer, or at a minimum with their supervisor before rejecting the request.
If a decision were made to allow the associate to record a conversation, we would encourage the investigator also to record the conversation so that any tampering with the recording would be readily evident. With the sophistication and availability of editing tools, conversations can be deleted or altered even by those who might be less sophisticated in operating a computer.
At a minimum, the investigator should keep handwritten notes of the conversation including the location in which it was conducted and the times it began and ended. In addition, any requests to use the restroom, obtain water, or anything else should be documented, and the time that they occurred should be noted.
The investigator’s notes should also reflect any specific statements made by the subject in quotation marks to reflect the exact words that were used. On occasion it may be useful for the investigator to have the subject of the conversation initial areas of the investigator’s notes to indicate correctness even before having the individual write a statement containing the relevant information.
Protect Identity and Evidence
The investigator should protect the identity of witnesses who cooperate in the investigation. These witnesses should also be alerted that if they face any retaliation for cooperating in the investigation, they should contact the investigator immediately.
Any evidence recovered from cooperating witnesses or other subjects should be properly logged into an evidence file. Original documents should always be obtained and, if necessary, a copy retained by the owner. Any evidence should be stored in a secure location and safeguarded from tampering. This evidence and any witness statements should be kept confidential and limited to only those who have a need to know.