Checklist: Harassment Investigation Guide

Getting the employee to describe the claim:

• Listen to the charge. Don't make comments like, You're overreacting.
• Acknowledge that bringing a harassment complaint is a difficult thing to do.
• Maintain a professional attitude.
• Gather the facts; don't be judgmental.
• Ask who, what, when, where, why, and how. Find out if the employee is afraid of retaliation. How does the employee want the problem resolved?

Conducting an investigation of the claim general rules to follow:

• Investigate immediately. Delaying or extending an investigation can make witness testimony increasingly unreliable.
• Remember that the manner in which the investigation is handled can itself furnish grounds for a hostile environment claim, so carefully document every step.
• Treat all claims seriously even those that seem frivolous until you have reason to do otherwise.
• Keep the investigation confidential. Emphasize to those involved that your discussions are not to be shared with unconcerned parties. Warn of possible disciplinary action, if necessary.
• Limit the number of persons who have access to the information. Communicate strictly on a need to know basis.
• Ask questions so that information is not unnecessarily disclosed. For example, instead of asking, Did you see Paul touch Joan? ask Have you seen anyone touch Joan at work in a way that made her uncomfortable? Remember the purpose of the investigation is to gather facts, not disseminate allegations.
• If there is more than one allegation, treat each separately.
• To avoid defamation liability, never broadcast the facts of a given situation or the results as an example to others or as a training tool.

Interviewing the complainant (Can be done when employee first reports charge):

• Get specific details.
• Find out whether there was a pattern of previous episodes or similar behavior toward another employee.
• Get the specific context in which the conduct occurred. Where? What time?
• Determine the effect of the conduct on the complainant. Was it economic, non-economic and/or psychological?
• Determine the time relationship between the occurrence of the conduct, its effect on the complainant, and the time when the complainant made the report.
• Prepare a detailed chronology.
• Analyze whether there might have been certain events that triggered the complaint; i.e., promotion, pay or transfer denial.
• Determine whether there were any possible motives on the part of the complainant.
• Find out what the complainant wants.
• Explain to the complainant that the charges are serious, that you will conduct a thorough investigation before reaching any conclusion, and that he or she will not be retaliated against for making the complaint.
• Don't make any statements about the accused employee's character, job performance, or family life.

Interviewing the accused:

• Obtain a statement from the accused.
• Identify the relationship of the accused to the complainant.
• Was there any prior consensual relationship between the parties? How long have they known each other? Is there a history of group or individual socializing?
• If the individual was a supervisor, indicate the individual s job title, obtain a copy of the individual s job description, and determine the individual's specific duties at the time of the alleged harassment.
• Determine whether the accused directed, or had responsibility for the work of other employees or the complainant, had authority to recommend employment decisions affecting others or was responsible for the maintenance or administration of the records of others.
• You can expect the accused to deny the charges. Observe the reaction. Note whether there is surprise, anger, or disbelief. Describe the details of the allegation and note the areas of disagreement between the testimony of both parties. If the accused denies the allegations, probe further to determine with the accused the background, reasons, and motivation that could possibly trigger the complaint.

Interviewing witnesses:

• Obtain statements from any witnesses who support or deny any of the complainant s allegations. Be aware that witnesses are often reluctant to come forward out of fear of reprisal.
• Assure all witnesses that their cooperation is important, that their testimony is confidential and that they will not be retaliated against for testifying.

Resolving the complaint:

• Apologize for the incident occurring, if that is appropriate.
• When attempting to remedy the conduct, avoid requiring the claimant to work less desirable hours or in a less desirable location. If you offer to transfer the complainant, try to get the complainant s consent and make sure the transfer position is substantially similar to the complainant s prior position. This helps ensure that the complainant is not being illegally punished for reporting discrimination or harassment.
• Consider the severity, frequency and pervasiveness of the conduct when imposing discipline on the harasser. There are several disciplinary options available, including:
  • oral and written warning
  • reprimand
  • suspension
  • probation
  • transfer
  • demotion
  • discharge
• When imposing discipline on the accused, any forms of discipline short of discharge should be accompanied by a warning that similar misconduct in the future may result in immediate discharge. If no discipline is imposed, document the reasons why.
• Provide remedial counseling and training on sexual harassment, if appropriate. Also take the opportunity to re-communicate your policy.
• Carefully and fully document the investigation, the discipline imposed, and any remedial steps taken.
• Conduct follow-up interviews with the parties to inform them of the company's actions.