Today in many organizations, the loss prevention function assists human resources in investigating allegations of sexual misconduct, bullying, and hostile workplace situations. These types of cases are very different from investigations of dishonest associates and require 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.
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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.
Editor’s Note: Which interview should be conducted first, the victim’s or the accused? To learn more, read the full article at “Life Is Like a Circle, Part One,” which was originally published in 2018. This excerpt was updated December 20, 2018.