Despite your best efforts – you’ve nurtured an inclusive environment, established an effective anti-harassment policy and communicated it across the company, and have provided training to all of your employees, top to bottom – there’s been a complaint of sexual harassment. The basic formula for a sexual harassment investigation, one that will stand up to scrutiny should the allegations lead to an EEOC complaint or lawsuit, is challenging but also fairly straightforward. A meaningful investigation that follows a well-thought-out process can protect a company from both financial and reputational damage.
Act with a sense of urgency. Time can be of the essence in conducting an effective investigation and delay can be costly. While no complainant should be guaranteed immediate results, a failure to pursue matters in a timely manner may lead to the perception that the complaint is not being taken seriously. Delaying an investigation may also lead to the loss of evidence or impair the recollections of witnesses. Continuing misconduct must be halted as soon as possible, with appropriate correct actions taken, while innocent parties should be “cleared” as soon as practicable.
Make a plan. Acting with a sense of urgency does not mean acting in haste. Take the time to assess the situation and establish an order of business. Determine who will conduct the investigation – someone in Human Resources? An outside entity? Your attorney? Be aware of any potential conflicts of interest. Consider what evidence needs to be collected. Must computers or emails be examined? Who will gather that evidence? Who needs to be interviewed beside the complainant and the alleged perpetrator? Are there additional witnesses?
Conduct interviews. Interview the parties in an order that makes sense and in locations that ensure some measure of privacy. Discuss with all interviewees the necessity of maintaining confidentiality in order to protect them and the process. However, do not make any promises regarding the confidentiality of the complaint itself, as it may become necessary to share that information, or parts of it, as the investigation ensues. Explain to all parties concerned that retaliation in any form and by any party is unacceptable and must be reported immediately. Be objective and ask open-ended questions. Avoid aggressive interview tactics. Take comprehensive notes during the interviews and document all findings.
Construct a report. When the interview/investigative phase is complete, construct a report that includes a description of the incident or incidents being investigated along with relevant dates, the names of the parties, summaries of witness statements or interviews and other evidence, along with any specific workplace policies that may apply. State conclusions and note any actions taken (even if it is determined that no action is to be taken). Notify the relevant parties of the outcome of the investigation and reiterate the non-retaliation policy, if necessary.
A comprehensive sexual harassment investigation can protect a company’s reputation and its finances when done properly. The attorneys at FisherBroyles are experienced in aiding clients with workplace investigations of all types, including sexual harassment. The Pharmacy and Health Care Law team welcome your questions. Please contact any of the following attorneys:
Brian E. Dickerson