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How An Employer Should Approach a Sexual Harassment Investigation

January 2003
By Larry L. Hines

Although it is critical that an employer conduct a prompt and thorough investigation when faced with a sexual harassment claim, California law and EEOC regulations do not say how an investigation should be conducted. This article is designed to help employers navigate the investigation process.

Who Should Conduct an Investigation?

When deciding who should conduct a sexual harassment investigation once a claim has been received, the employer should select as the investigator a person who (1) is knowledgeable of sexual harassment rules, (2) has good interviewing skills, (3) can conduct the investigation objectively and impartially, (4) is able to take thorough and accurate notes, and (5) has the ability to keep information confidential. This usually means a member of a Human Resources Department who has been trained in sexual harassment investigations, in-house legal counsel, outside legal counsel or an outside consultant.

Protecting the Investigation Using the Attorney-Client Privilege or Attorney Work Product Doctrine

Depending on the particular facts of any given investigation, it may be important for employers to protect the investigation under an attorney-client privilege or the attorney work product doctrine. This generally means that outside counsel must either directly conduct the investigation or the investigation must be done under the attorney's supervision.

Caution! Because the rules permit an employer to defend against a sexual harassment claim by showing it conducted a prompt, thorough and impartial investigation, it is often the case that the attorney-client privilege must be waived so that the employer can prove it took appropriate action to investigate and prevent a recurrence. This often arises when an employee has been found guilty of sexual harassment and terminated and thereafter sues for wrongful discharge. In these situations, it is important for employers to be sensitive to the fact that they may need to disclose interview notes, investigative reports and sometimes even legal advice to properly set up a defense to a claim. Accordingly, every employer must realize that everything they do or fail to do may get played out in front of jury at a later time.

How to Start an Investigation

As soon as a sexual harassment claim has been received, an employer must immediately (i.e., within 24 hours) prepare for the investigation. This means:

1. Acknowledge legal receipt of the complaint by a confidential memo to the victim.
2. Determine who should conduct the investigation.
3. Organize and review relevant documents, which include:
   • A victim's complaint(s);
   • Company harassment policies and procedures;
   • Personnel files of victim and alleged harasser; and
   • Any prior investigative files and/or complaints to see if this is a repeat incident.
4. Prepare a list of potential witnesses to be interviewed, including the victim, alleged harasser, supervisors and witnesses.
5. Determine the method for memorializing the investigation:
   • Use of handwritten witness statements and/or typed statements to be signed by the witnesses.
   • Determine advisability of using tape recorded interviews and/or videotaped interviews.
   • Maintain notes prepared by the investigator, including chronology of who/when interviewed and what was said.
   • Obtain diagrams, photographs or videotape (persons or locations, if appropriate).
6. Determine whether the victim and/or harasser should be given time off (with or without pay).

How to Approach and Memorialize Witness Interviews

When conducting a sexual harassment investigation, there are a number of guidelines that any investigator should follow. These include:

1. Prepare a general outline of the issues and questions you intend to ask a witness before commencing the investigation. Avoid using technical legal terms.
2. When interviewing a witness, be sure to explain the following:
   • Why the interview is taking place;
   • How the information may be used, i.e., it may be provided to those involved in the claim;
   • The importance of providing complete and accurate facts;
   • The importance of providing the names of all possible witnesses; and
   • The need for confidentiality.
3. Take detailed notes of each interview, including the questions asked as well as what the witness said and volunteered.
4. Never record in the witness statement your own beliefs or conclusions about what a witness may say. Issues of credibility are critical and these observations should be recorded separate from the witness statement itself. This allows the investigator to separately record personal observations, such as evasiveness, signs of anxiety or other indications that a witness is not being truthful without interjecting these thoughts into what the witness actually said.
5. Before completing the notes of a witness interview, go over them in detail with the witness and ask whether the witness has anything to add or correct.
6. When your notes for the statement are in final form, ask the witness to read and sign the handwritten or typed statement.
7. It is usually not advisable to tape record witness interviews because witnesses are generally more likely to be nervous and not provide a thorough explanation when they know they are being tape recorded.
8. When conducting an investigation it is critical that an investigator cover all of what occurred in a chronological fashion, including:
   • What, when and where did it happen?
   • Who was present?
   • Who did and said what to whom?
   • Was the incident an isolated event or part of a pattern?
   • Determine if any notes, recordings, photographs or other material exist to support or contradict what happened.
9. Remember, the investigator should not only record what a witness personally saw or heard, but also what they heard others say. It may be useful because it may lead to other witnesses.
10. Before finishing a witness interview, ask the witness whether there are any additional questions or facts that were not covered that he/she believes may be important.
11. Remember, witnesses sometimes do not remember everything and often will recall important details at a later date. Accordingly, be sure and request that witnesses call you if they remember further information.
12. Re-interview at least once the victim and the alleged harasser. It is critical that all recollections are complete and that the accused has been given every opportunity to explain his conduct and respond to allegations. Based on further information, you may need to interview other witnesses again.

Special Dos and Don'ts for Interviewing Victims

Because a prompt and thorough investigation is so important, an investigator should remember to cover certain aspects of the investigation at the outset. These include:

1. Inform the victim that the company is committed to a prompt, thorough and impartial investigation.
2. Explain that the company will take steps to prevent similar conduct from happening again and will take appropriate corrective action.
3. Explain that the company will not permit any retaliation and that the victim should report it immediately if it occurs.
4. Explain that what the victim or other witnesses say will be passed on to others who must participate in the investigation and decide on what course of action to take.
5. If a time lapse exists between an alleged act of harassment and the filing of a complaint, have the victim explain in detail the reason for the delay.
6. Ask the victim to specify everything she may have said or done with the alleged harasser to make sure the conduct was "unwelcome."
7. Ask what the victim said or did with an alleged harasser after the harassment occurred, i.e., was it business as usual or did the victim express some ongoing displeasure with the alleged harasser's conduct.
8. Determine if the victim made any complaints to any other fellow employees about what happened and if not, why not.
9. Determine if the victim made any notes or in any way recorded what happened.
10. Ask the victim to provide the names of all witnesses.
11. Always ask the victim what action she wishes the company to take. It may be more than what the company is willing to do, and you need to be prepared to respond appropriately.
12. Ask the victim whether she believes she could continue working with the alleged harasser and, if not, what steps she believes are reasonable to resolve the matter.

Special Dos and Don'ts for Interviewing an Alleged Harasser

When interviewing an alleged harasser, it is important that the investigator do the following:

1. Explain the allegation in detail so that the person has an opportunity to reply to every alleged improper statement or action.
2. Determine whether anything in writing exists between the alleged harasser and the victim, such as notes, gifts, etc.
3. Determine whether there was a social or personal relationship with the victim.
4. Determine whether the victim participated or initiated any sexual jokes or sexually-oriented conduct.
5. Determine whether the victim ever protested any of the actions of the alleged harasser and how he responded.
6. Ask the alleged harasser whether he believes the victim has any motive to falsify a story against him and, if so, why.
7. Ask the alleged harasser to provide the names of all witnesses who he believes should be interviewed as part of the investigation.
8. Do not pre-judge the issue by assuming an alleged harasser is guilty. You must wait until all the facts are known before you begin to draw a conclusion.

Factors to Consider in a Hostile Environment Claim

The EEOC describes hostile environment harassment as conduct that creates an intimidating, hostile or offensive working environment or which interferes with an employee's work performance. Accordingly, the investigator must consider:

1. Was the conduct verbal or physical?
2. How frequently was it repeated?
3. Was the conduct hostile or offensive?
4. Was the alleged harasser a co-worker or supervisor?
5. Did others participate?
6. Was the harassment directed at more than one person, i.e., not personal to the victim?
7. How would a reasonable person have reacted?
8. Was the victim overly sensitive?

Preparing a Report

When the investigator has completed a sexual harassment investigation, he/she should organize all facts and information into a detailed report. The report should include:

1. A chronology of all steps taken in the investigation and witnesses interviewed.
2. Final interview statements for each witness.
3. Any corroborative or contradictory evidence, including documents, tape recordings, etc.
4. The final report should include a section that summarizes factual findings of the investigator, including important facts that the investigator believes support his/her conclusions.

It is generally advisable for the investigator to be neutral and objective when compiling a final report. Although the investigator may draw conclusions as to whether sexual harassment occurred or did not occur, the report should not make any recommendations as to any action to be taken by higher management. This leaves management free to determine what appropriate action should be taken and gives even greater credence to objectivity.

What "Appropriate Action" is Necessary?

If the conclusion of a sexual harassment investigation is that the harassment occurred, the employer must then determine what action is "reasonably calculated to end the harassment and prevent a reoccurrence." Although there is no magic formula for what steps may be taken, the range of actions include:

1. Discharge of the alleged harasser.
2. Suspension without pay (although exempt employees generally must be suspended without pay for a full work week to avoid a Labor Code violation).
3. A written reprimand and/or warning to the alleged harasser placed in his personnel file which makes it clear that any further occurrence could lead to termination.
4. A memorandum to the alleged harasser's personnel file stating that the company was unable to determine whether the alleged harassment occurred. Notwithstanding such an inconclusive conclusion, the memorandum should reiterate the company's policy against harassment and the consequences of a possible violation and that the company will be monitoring the situation.
5. Transferring the alleged harasser and/or victim to different positions. Employers must be cautious when considering the transfer of a victim of sexual harassment because it may be seen as a form of retaliation.
6. Confer with the victim to determine what remedy is satisfactory, but without promising that the requested remedy will necessarily be implemented.

Concluding the Investigation

As a final word of advice, it is important for an employer to always meet with the victim at the conclusion of an investigation and explain the investigative process, conclusions, any disciplinary action taken or other remedial steps to avoid a recurrence of the offensive conduct. This meeting, and the results of the investigation and the remedy should be documented in a memo to the victim.

If the results of the investigation are inconclusive, it is also important that an employer never advise the victim that they have concluded that no sexual harassment took place. What should be said if an investigation is inconclusive is a difficult and touchy area. What the employer may say can directly or indirectly attribute untruthfulness to the victim. Accordingly, in this awkward situation, the employer should simply explain that based upon its investigation it was not able to determine for sure what happened and at the same time assure the victim that the company will monitor the situation closely to make sure that no further offensive conduct occurs.

Mr. Hines may be reached at (805) 988-8301 or lhines@nchc.com.