Best Practices for Investigating Sexual Harassment Claims

With social movements centering on sex- and gender-based harassment and discrimination in the news nonstop in recent years, we’re all aware of just how serious sexual harassment in the workplace can be. A workplace claim about sexual harassment is a serious matter that requires a serious approach and strong attention to detail.

With large-scale sexual harassment claims such as those put forth against Brett Kavanaugh, Ford, Harvey Weinstein, and Roger Ailes, now is a critical time to review best practices for investigating and responsibly handling sexual harassment allegations.

The Benefits of a Proficient Investigation

On average, there are 76 sex-based harassment charges filed to the Equal Employment Opportunities Commission (EEOC) every day. A workplace sexual harassment claim is a serious matter that requires much attention to detail. The costs of workplace harassment claims are high: in 2016, the EEOC reported that since 2010, employers had collectively paid out $698.7 million to employees alleging sexual harassment.

In addition to financial losses, a company with many sexual harassment claims can face other major losses, such as decreased productivity, lowered company morale, higher turnover, and reputational damage. These are just a few of the consequences of sex-based harassment in the workplace.

Acting in a timely manner to conduct an adequate and responsible investigation can protect your organization. Furthermore, when you work to create a healthy workplace culture in which sexual harassment allegations are handled in an appropriate and timely manner, you’re helping to create a work environment where employees feel that they belong to a transparent work culture that encourages self-agency and action. Nobody wants to feel that they’re contributing to a toxic and harmful culture.

The Investigation Process

What should you do if a sexual harassment claim surfaces in your workplace? All reports should be taken seriously, and investigations should be launched to reveal the truth. You’ve likely noticed the media coverage about sexual harassment claims that were handled poorly. That kind of scandal and shame is certainly not something you want for your organization.

Here are some tips to handle the investigation process. Please note that this is not an exhaustive list and every situation should be treated uniquely and delicately:

Before starting the investigation, determine the appropriate scope of the investigation.

Choose someone from upper management with good people skills and sound judgment to serve as an investigator. This person should be a neutral party. If no neutral and qualified individuals can be found inside your organization, hire from outside.

Assure the complaining individual that their complaint will be treated seriously from the start. Assure them that they won’t face any retaliation for speaking up and any concerns about retaliation should be immediately brought to the investigators.

Instruct the accused individual not to contact the complainant. Inform the accused of the consequences of not abiding by this rule, which can include disciplinary action, up to and including immediate termination.

Conduct separate interviews with the complaining individual and the accused, as well as any other parties who may have relevant information.

Review any relevant communications such as emails or memos, as well as personnel files.

After conducting interviews, consider whether the originally determined scope of the investigation needs to be altered.

If there are any delays while attending to the investigation process, thoroughly document why and for how long the delay occurred.

Seek legal counsel and review company policies on sexual harassment.

Request that anyone who becomes involved in the investigation at any point maintain confidentiality. Remind them that this is essential to carrying out a thoughtful and fair investigation.

Ensure that your sexual harassment training and policies are current. Schedule a company-wide review of sexual harassment prevention training to be sure that everyone in the organization is on the same page.

How to Properly Interview for Evidence

There are several steps that you should take when interviewing someone during a sexual harassment investigation. Throughout the interviewing process, make sure that both the interviewing parties and the interviewed individuals are aware of confidentiality standards.

While you cannot control what others in the office whisper about, you can do your best to conduct a discreet and confidential investigation by modeling correct behaviors for your employees:

• Start the interview with a preliminary statement that includes what’s happening, company procedures and policies, and ground rules
• Start with general questions such as “Do you remember the staff meeting last Monday?” and then slowly take the questioning to a narrower topic
• Make sure to get details that can map out the entire scenario in chronological order
• End the interview by asking the individual if they got a chance to tell you everything they know about the situation
• When interviewing the accused, consider placing that employee on suspension pending the rest of the investigation

The EEOC has provided appropriate questions to ask of the complainant, the alleged harasser and any third parties:

Ask the complainant:

• Who, what, when, where and how:
  • Who committed the alleged harassment?
  • What exactly occurred or was said?
  • When did it occur and is it still ongoing?
  • Where did it occur?
  • How often did it occur?
  • How did it affect you?
• How did you react? What response did you make when the incident(s) occurred or afterward?
• How did the harassment affect you? Has your job been affected in any way?
• Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
• Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
• Are there any notes, physical evidence, or other documentation regarding the incident(s)?
• How would you like to see the situation resolved?
• Do you know of any other relevant information?

Ask the alleged harasser:

• What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
• Are there any persons who have relevant information?
• Are there any notes, physical evidence, or other documentation regarding the incident(s)?
• Do you know of any other relevant information?

Ask third parties:

• What did you see or hear? When did this occur? Ask them to describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
• What did the complainant tell you? When did s/he tell you this?
• Do you know of any other relevant information?
• Are there other persons who have relevant information?

The Post-Interview Process

After interviews have been conducted, the first step you will take is to determine a conclusion about whether misconduct actually occurred. If so, to what extent? What corrective action will be taken? If there was wrongdoing, you will need to assess whether a complaint can be solved through arbitration.

Once an outcome has been reached, you’ll want to assess the impact of the claim and any following action on your organization. Furthermore, you will want to follow up with affected individuals on their emotional wellbeing. You may want to offer counseling to individuals who went through the investigation process.

Be sure to revisit company-wide sexual harassment policies and procedures with the entire organization once the investigation has closed. Should something like this happen again, you’ll want to have documentation showing that you took proactive measures with employees. You should be able to show that every single employee went through harassment training and knows the legal requirements and company’s expectations. Additionally, you should be sure that employees are aware of their rights regarding making complaints.

Next Steps

As can be seen in recent media, sexual harassment claims that aren’t handled appropriately can severely damage an organization. Of course, you want to do your best to prevent workplace sexual harassment – but if something happens, you need to know how to handle it fairly and effectively.

KnowledgeCity’s course, “Investigating Sexual Harassment Complaints” will arm you with vital information. It’s crucial to be proactive and to have a plan before something comes up. The course will go over what to do when a complaint has been filed, effective and fair investigation procedures, interview dos and don’ts, confidentiality, and follow-up after a resolution is reached. Protect yourself by being informed and having the skills and toolsets you would need in a sexual harassment investigation.