Every complaint of sexual harassment in the workplace must be investigated, even if the person who complained doesnt want to pursue the matter. To do otherwise is to invite a costly lawsuit.
An investigation should consist of five steps:
1. Meet with the individual who filed the complaint. The goal is to obtain a detailed explanation of the complaint who did and said what, and where and when the incident happened. Ask for a detailed written account within a day or two and immediately report any new incidents or signs of possible retaliation.
Questions should be nonjudgmental you dont want the individual to feel like the target of the investigation. Nor should you comment on the accuseds reported conduct. Tell the individual that there should be no discussion of the complaint or investigation with anyone, that there will be no retaliation and that no information will be disclosed to anyone except as needed to investigate the complaint.
2. Evaluate the complaint. The goal is to determine whether the complaint involves unlawful harassment. The interview may reveal a personality conflict or a negative reaction to constructive criticism. Or the conduct may not fall within the sexual harassment policy. If so, inform the individual who made the allegation and close the matter.
If the situation requires further investigation, remedial action may be needed before further investigation. The individual filing the complaint might be given paid leave or assigned to work in another area during the investigation. The legal department or outside counsel should review the situation to make sure that fact of the leave cannot be used as evidence in a future lawsuit.
3. Interview the accused. Schedule a meeting with the accused as soon as possible after meeting with the individual who filed the complaint, but dont state the reason for the meeting. The goal is a spontaneous response. Inform the accused of the complaint and ask whether he or she knows anything about it. Then state the allegations one at a time and ask for a response.
If the accused denies them, ask whether there are witnesses or evidence to support the denial. Find out if the accused knows why a complaint would be made.
Tell the accused not to discuss the complaint and investigation with anyone and state company policy prohibiting retaliatory action. Warn the accused against having any contact about the complaint with the individual who made it. If the accused admits the allegations, no further investigation will probably be needed.
4. Interview witnesses. If there are factual disputes material to the investigation and either party to the complaint has identified witnesses, interview them using essentially the same guidelines.
Keep careful notes of interviews the company will need a complete record to support the conclusions and remedial action. Keep documentation relating to the complaint and the investigation in the complaint investigation file separate from personnel records to which others have access. Notes and other investigative materials (other than those involving a legal evaluation of the evidence) will probably be usable in any resulting lawsuit.
5. Prepare the investigation report. The report should contain the factual conclusions of the investigation for evaluation by the president and chief operating officer. Give a copy of the report to the accuseds direct manager or outside legal counsel for review before it is presented to those executives.
The report should list the allegations and the accuseds response and analyze their merits. Conclusions should be factual, not legal; the report may find that the accuseds conduct was offensive, unwelcome and violated company policy, but it shouldnt state that the conduct did or didnt violate the law. It may include factors potentially influencing remedial actions, but it shouldnt recommend disciplinary or remedial actions.
The parties to the complaint may see the report after the remedial action has been decided, but they should not receive copies.
In dealing with a charge of sexual harassment, you can defend yourself and your company by demonstrating reasonable care to prevent and promptly correct sexually harassing behavior. You can do this most effectively by adopting a comprehensive sexual harassment policy and complaint procedure and making sure that managers and supervisors understand and use them properly.
William E. Adams and Lisa M. Passarello are attorneys with Eckert Seamans Cherin & Mellott, LLC, a national law firm based in Pittsburgh.