By Norma Zeitler
In my last article, I explained that before becoming a lawyer I was a captain in the U.S. Army. What I did not explain is that I served as an intelligence officer. The skills that I learned as an intelligence officer – how to gather intelligence, how to judge the credibility of sources, and how to synthesize the information gathered into usable data – are skills that have served me well as I advise clients on how to properly respond to a complaint of harassment.
Why? Because properly responding to a harassment complaint begins with figuring out what really happened (by conducting a thorough investigation), and by then taking appropriate action designed to ensure that the harassment stops (if the investigation reveals that it occurred). The focus of this article will be on finding out what really happened through effective workplace investigations.
In 2016, the Equal Employment Opportunity Commission (EEOC) issued a report on Harassment in the Workplace, which included (among other things) guidance on what steps an employer should take when responding to a complaint of harassment. (See Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, June 2016, at https://bit.ly/2NgxPhG.) In particular, the report advises that employers devote sufficient resources, so that workplace investigations are as confidential as possible, prompt, objective, and thorough. But what does that mean? Let’s see.
When an employee complains of harassment, do not promise confidentiality – even if the employee insists. Instead, tell the employee you will handle the complaint as “confidentially as possible.” And then do it – share the information on a need-to-know basis only.
Once an employer receives a report of harassment, or as soon as a manager knows about harassment (even if the harassment is not reported), the employer has a legal obligation to take prompt (and effective) remedial action. As with most things, the definition of the word prompt varies based on the particular circumstances, as does the definition of effective. When deciding how quickly action must be taken, employers should consider the severity of the conduct in the complaint and should also consider whether it is necessary or advisable to remove the alleged harasser from the workplace.
Objectivity starts with the investigator – the investigator should be a person who is unbiased, outside the supervisory chain of the alleged harasser and the alleged victim, and qualified to conduct the investigation. Employers who do not have an internal resource who is well-versed in conducting investigations should seek the advice of an experienced human resources professional, lawyer, or consultant to conduct the investigation or advise the employer on how to conduct the investigation properly themselves.
It is important to understand that every action an employer takes when it receives a complaint of harassment will be judged with the benefit of hindsight. That is particularly true when it comes to the thoroughness of the investigation. A thorough investigation typically includes three parts – pre-interview tasks, interviews, and follow-up.
Pre-interview tasks include such things as reviewing relevant policies that typically include anti-harassment, code of conduct, and disciplinary policies. Next, review personnel files of the alleged victim and the alleged harasser to see if there are prior complaints. Then, determine which witnesses should be interviewed, typically the alleged victim, any witnesses, and the alleged harasser. Prepare interview questions in advance that are tailored to the witness, and based on the information gathered to date. Finally, review other sources of objective information such as text messages, emails, security footage, building access records, etc.
The interview phase of the investigation involves conducting various interviews. Ideally, and if the severity of the allegations so warrant, the interviews should be conducted by two individuals – a skilled HR professional and a note-taker. Both the HR professional and the note-taker should take detailed notes that include impressions about credibility, demeanor, and any non-verbal communication. In addition, at the beginning of each interview, the interviewer should start by reassuring the interviewee that the employer takes such matters seriously, that the matter will be handled as confidentially as possible, that retaliation will not be tolerated, that any type of retaliation (or any additional inappropriate conduct) must be immediately reported, and that appropriate action will be taken in response to the complaint and if there is any type of retaliation.
As for the interview phase, whenever possible, the interviews should be conducted in person and should begin with interviewing the complainant. The goal of the interview with the complainant is to find out what happened. The interviewer should think like a journalist when preparing for the interview – ask open-ended, broad questions, and then ask follow-up questions to get the specifics.
- Who was present ? Identify any potential witnesses.
- What happened? Get as many details as possible.
- When and where did it happen? Identify whether there might be objective evidence such as video footage or access reports.
- How did it happen? This can assist in preventing a reoccurrence.
- Has anything like this ever happened to you before (either with the alleged harasser or with someone else)?
- Is there anything else? Ensure you have the whole story.
After interviewing the alleged victim, the investigator should interview any witnesses – again with the goal of gathering as much information as possible, while at the same time, trying to determine which of the allegations are corroborated (or not). After the witness interviews have been completed, the alleged harasser should be interviewed. During this interview, the alleged harasser should be given an opportunity to respond to each and every allegation that has been reported, and should be given an opportunity to share any additional information that he or she would like to share. The interviewer should not share with the alleged harasser who said what, and should take care to ask the questions in a way that does not telegraph who provided the information.
Once the interviews have been completed, the information collected must be analyzed to determine whether any follow-up is needed. And once that is done, it is time to prepare the report and take corrective action – both of which are beyond the scope of this article. So stay tuned for Part 3 in the next issue.
Norma Zeitler is an attorney and partner in the Chicago office of Barnes and Thornburg LLP. The firm serves as NWFA’s legal counsel. For more than two decades, Norma has counseled clients on a variety of employment law matters and litigated employment law cases. She can be reached at firstname.lastname@example.org or 312.214.8312.