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Life Is Like a Circle: Part One

Life is like a circle. What goes around comes around, and karma catches up with people. The recent uproar over sexual harassment allegations seemed like déjà vu to us, maybe because we are older than many of our readers. Thinking back to what was so familiar got us to thinking about the start of our business in 1982.

The Equal Employment Opportunity Commission (EEOC) began focusing on sexual harassment in the mid-1970s arguing that it was unlawful to make employment decisions based on “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The EEOC ruled unwelcome sexual activity violated Title VII of the Civil Rights Act.

After the EEOC finding, companies initiated training to deal with harassment. It was 1991 when the flood gates, much like today, really opened. Then, as now, a powerful man allegedly was making sexual comments to a less powerful subordinate.

The issue revolved around then US Supreme Court nominee Clarence Thomas as he was being considered for a position of justice in the highest court in the land. Anita Hill had worked for him in the US Department of Education and alleged that Thomas had constantly barraged her with pornography and discussions of sex acts. While Thomas was confirmed to the court, this became one of the most famous sexual harassment cases in the history of the United States. Hill’s testimony and the publicity surrounding it swelled the filing of sexual harassment complaints and resulted in numerous payouts from court settlements as well.

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It was during this time that we created interviews to deal with the specialized “he said she said” sexual harassment cases. In these cases there were generally no witnesses or corroborating evidence to support one side or the other. Many organizations struggled with these investigations as they tried to determine who was telling the truth. Compounding the problem were internal biases for the offender who often was a long-term valued associate who was important to the business. Since many of the offenders held important positions and provided a strong economic advantage for the organization, the companies chose to pay off the complainant while retaining the harasser. Unfortunately, these people rarely change their ways and only went on to sexually harass and intimidate others.

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 investigation the ultimate decision of who is telling the truth might be based on the investigator’s assessment of the interviews conducted.

Organizing the 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.

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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 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.

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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 first interview to be conducted has to be an in-depth conversation with the complainant. This is a critical conversation that will help establish the timeline of events, the context surrounding the events, and perhaps even the truthfulness of the allegations. In many of the sexual harassment interviews we conduct, we record our conversation with the complainant to clearly establish what he or she said about the incident and to capture related emotions.

This interview is a time for the victim to talk without interruption from the investigator. It’s critical to establish the untainted story from the victim without any input from the investigator or his questions. To obtain the untainted story in its purest form, we begin with a set of instructions that set the stage for our expectation of what the witness or victim will do. These expectations help them construct the story and include many more details than they would otherwise include in this first telling. The investigator then expands the details using open-ended questions, such as “tell me more about that” or “you said he yelled at you; explain that to me.” It’s only at the end of the interview that closed-ended questions should be used to lock down specific details that were not clear during the previous attempts at expansion. A closed-end question is asked about a specific detail: “Did he have his jacket on at that time?” These questions provide only a limited amount of information compared to a narrative response by the individual to an open-ended question.

Once the victim’s version of the events has been clearly established, it will be easier to determine exactly who needs to be interviewed and in what order they should be done. The investigator can also determine from the victim’s statements what other corroborating evidence might be available to substantiate his or her story.

It may be useful to construct a timeline of the event or events to help illustrate the timing of the allegations. As additional interviews are conducted, these can be added to the timeline to further illustrate the overall context of the event, for example, if there was an outcry witness who was told immediately after an incident this could be critically important to the overall assessment of the parties’ truthfulness.

In our next column, we will continue with the development of a sexual harassment or workplace investigation.

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