Risk Managers' Forum

Are you ready to investigate sexual harassment?

Walking the tightrope

By Steve Carter, JD, CSRM, ARM, CRM

This is the final article of a three-part series on sexual harassment. The first article, “Preventing Sexual Harassment in the Workplace,” appeared in the August 2008 issue of Rough Notes magazine. The second installment, “Responding to Reports of Sexual Harassment,” appeared in the October 2008 issue.

Investigating any type of employee misconduct is difficult. Investigating allegations of sexual harassment, however, is exceptionally difficult. The ramifications for the entire organization can be serious and far-reaching. For the parties directly involved, the events that must be delved into are usually embarrassing and emotionally wrenching. To co-workers who may have personal and professional ties to those involved, the commencement of a sexual harassment investigation can also be extremely upsetting.

Consequently, during every stage of a sexual harassment investigation—from the first witness interview to the completion of the final report—it is critical that everyone involved be treated with respect and sensitivity.

In this final article in the series, we will explore some of the frequently asked questions about handling witnesses and preparing the final report of the investigation.

Are there special concerns when interviewing the complainant?

The complainant, like all witnesses, should be interviewed privately—that is, out of the presence of other witnesses. If possible, the complainant should be the first person interviewed. Prior to the interview, the investigator should thoroughly review any written statements by the complainant, any supervisor’s notes and any other relevant evidence. Depending upon the nature of the allegations, the investigator should review both the complainant’s and accused employee’s personnel files.

Because time is of the essence, the date, time and place of the interview should be coordinated with the complainant as soon as possible. The investigator should be aware that for personal reasons the complainant may choose a date and time that is outside normal working hours and at a place that is private and possibly off site. When setting up the initial interview, the investigator should be sensitive and accommodating to any reasonable requests.

The interviewer should begin by asking the complainant to describe what happened. As the story unfolds, the investigator should jot down follow-up questions to clarify what has been said, to place the events in chronological order and to obtain additional information that may identify any corroborating witnesses or the existence of any relevant physical evidence.

Because many sexual harassment complaints often boil down to a so-called “he said/she said” credibility contest, investigators must attempt to collect information from the complainant and later from other witnesses that may corroborate the complainant’s story. Questions exploring who else may have participated in a specific event; or may have overheard or seen what occurred before, during, or after the event can be important in identifying other witnesses. As the investigation progresses, this information may be valuable in assessing the credibility of both the complainant and the accused harasser.

Before concluding this initial interview with the complainant, the investigator should ask to whom the complainant has talked about these events and when the conversations occurred. Evidence that a complainant made a “fresh complaint”—that is, confided in someone shortly after a serious event occurred—may have significant value in weighing the complainant’s credibility at the conclusion of the investigation. Delving into the complainant’s demeanor when a fresh complaint was made may also be helpful in answering the question whether the complainant was actually offended by the alleged conduct.

At the end of the interview, the investigator should thank the complainant and any witnesses for their cooperation. They should also be advised that they may be interviewed again and asked not to discuss what they have disclosed to anyone until the investigation is concluded. Finally, the investigator should advise the complainant and witnesses that any threats of harassment, intimidation or retaliation related to their participation in the investigation should be reported to the investigator.

Are there special concerns when interviewing the accused?

The interview of the accused should be conducted in the same way as the interview with the complainant with two exceptions.

First, the accused should be apprised of the specific allegations that are the subject of the investigation. Unless pivotal to the allegations, the complainant’s identity should not be revealed. Similarly, the accused should not be told what the complainant and other witnesses have specifically related. Like the complainant, the accused should be allowed to offer an explanation without interruption, and then asked follow-up questions. These may be questions to clarify what has been said, to place the events in chronological order and to identify any corroborating witnesses or relevant physical evidence.

Second, the accused should be asked about any relationships with the complainant, if identified, to determine whether there are any possible motives that would suggest the complainant has fabricated the story. This is critically important if the accused is the complainant’s supervisor and may have recently taken adverse action against the complainant or threatened to do so; or perhaps foolishly been involved in a romantic or even financial relationship with the complainant.

What should the report of the investigation include?

The report of investigation will probably be reviewed by the organization’s legal counsel and certainly by the individual who will take any warranted disciplinary action against any parties. Consequently, the investigation must be thoroughly documented. The final report must essentially stand alone as a complete record of all evidence that has a bearing on the validity of the allegations.

Verbatim transcriptions (if taken), and written summaries of the witnesses’ interviews must be prepared and indexed in the report. In addition, the report should include the originals or copies of all documentary evidence, including photographs, copies of e-mails, cartoons, etc. If there are items of physical evidence that cannot be included, the items should be described and photographed with a reference as to where they can be found for examination.

Finally, a chronology of the day-to-day progress and activities of the investigation should be included in the report. All of this information will be important to those responsible for reviewing the report of investigation for legal sufficiency and then determining what, if any, disciplinary action is warranted.

What is the burden of proof re-quired to support factual findings?

The investigator’s final step in the investigation is making findings of fact based solely on the documented evidence contained in the report of investigation. Unlike a criminal trial where the standard of proof is “beyond a reasonable doubt,” the standard of proof in a sexual harassment investigation is the less rigorous standard of “preponderance of evidence.” Simply stated, an investigator may justifiably conclude that an allegation is founded by the evidence if it is simply more probable than not that it occurred.

Many sexual harassment cases come down to a credibility contest between the complainant and the accused. In these cases, the complainant states that an event occurred; the accused states it did not; and there is no direct evidence to corroborate or refute either party’s story. To resolve these cases, the investigator should carefully consider indirect evidence that may impact credibility or provide a motive for either party to fabricate.

After weighing both the direct evidence and indirect evidence, the investigator will be able to determine whether or not there is a preponderance of evidence to support any allegation of sexual harassment.

Should the investigator include recommendations in the report?

If the investigator finds that any of the allegations are supported by a preponderance of the evidence, it is generally not appropriate for the investigator to make any recommenda-tion as to what disciplinary action is warranted. In most organizations, those decisions will be made by upper management. Recommendations by the investigator may be viewed as evidence of bias or lack of impartiality and later cause problems for the investigator and the organization, especially if litigation occurs.

Conclusion

Investigators who are responsible for collecting and weighing evidence must protect the confidentiality interests of everyone involved and prepare the final report with legally supportable findings of fact. Parts two and three of this series have addressed some of the most commonly asked questions about sexual harassment investigations. For answers to the uncommon questions inherent in any investigation, consultation and guidance from the organization’s legal counsel is always advisable. *

The author
Steve Carter, JD, CSRM, ARM, CRM, has been a risk management and human resources consultant since 2006. Previously he “wore several hats” as risk manager, human resources director, and institutional compliance officer at Camden County College in New Jersey. He began his insurance career working in CIGNA’s major claims department. Before joining the insurance industry, Steve was a career officer in the U.S. Army’s Judge Advocate General’s Corps.