Conducting a Sexual Harassment Investigation

Conducting a Sexual Harassment Investigation

Imagine this scenario, you are a business owner. Business is good, you are making good money, providing a great service, you have grown in the past few years, you have a staff of 25 people and all seems to be good in the world.

Then your second in charge comes in with a report that an employee has made a sexual harassment report yesterday evening.

Well after dropping a few expletives for having your business zen disturbed, you ask your second in charge to conduct the investigation and then make some recommendations. What is that second in charge supposed to do.

The Most Important Thing Is To Get Started Immediately.

If you are the owner or the second in charge who waits and sits on the complaint hoping it will go away, I hope you have your lawyer on speed dial because you are going to need them shortly.

First, get a written report from the charging party. Get all the information you can that answers the questions who, what, where, when, why, and how.

  • Who did the harassing? Who may have seen it? Who did you see or speak to after the event or events?
  • What was said or done? What kind of threats were made? What did you see or hear? What is the relationship between the charging party and the allegedly harassing party?
  • Where did these events take place? Private office, hallways, etc.
  • When did these events take place? Memory is  tricky thing, particularly when traumatic events take place, the closer in time to the events the more likely it is that memories are clearer, but not always.
  • Why did these events take place? Was there a performance review, tasking review, meeting, etc.
  • How did the events take place? Was it physical touching, verbal conduct, or something else?

Try to get as much detail as possible in a written report. Then the investigating supervisor should have a meeting, with another supervisory employee if possible, and ask questions to flesh out the details, again trying to get as much information and context as possible, because context does matter.

Second, question witnesses. If there are witnesses who saw the interaction all the better. But there may be instances, and it is probably likely, that the harassment took place behind closed doors. In this case, witnesses might be able to describe the charging party’s demeanor before and after the events. Did the charging party look shaken up, angry, crying, suddenly silent or sullen, feeling ill an departing early? Was there any yelling? Try to get times for events and observations.

Ask the alleged harassers other subordinates or coworkers for any potentially similar situations.

Third, collect data. Look to see if there is any documentary data, emails, texts, documents, that might indicate a harassment took place or was possible. You would be surprised at the amount of dumb stuff that takes place in media that is easily monitored and collected. The employer may look at any company provided devices, such as computers or smart phones, company emails, internal text messaging logs, even web browser history. If the harassment has taken place in an area where there are security cameras, pull the recordings and review them.

However, please note that company data is searchable at any time. But in Maryland, and in many other states, an employer cannot require an employee to provide social media login in credentials to the employees social media profiles or pages.

Fourth, interview the alleged harasser. Get their side of events. Again, focus on the who, what, where, when, why, and how of the matters. Keep an eye on interactions between the charging party and the alleged harasser after this meeting. See if anything happens between them. Or between the alleged harasser and any other people.

These investigatory steps could happen at the same time. There is nothing magical about this ordering of steps.

After these stages of the investigation are complete, the investigator is not done. The investigator should develop a time line if possible. Developing a time line can help develop the events a bit more as well as identify time periods where there is any data missing. The investigator should go back and attempt to fill in gaps if necessary.

Once all the facts are gathers as best as possible, the investigator has to make a two step analysis from an objective standpoint of a person in the same shoes as the charging party.

Step one: was the conduct both unwelcome and of a sexual nature. Just because a conduct is unwelcome does not mean it is of a sexual nature. Just because the conduct was of a sexual natures does not make the conduct unwelcome. Yes, it is probably unwelcome since there is a report of harassment, but it might not be of a sexual nature. Just because it might not be of a sexual nature doesn’t mean there isn’t a problem (there clearly is), but it would not amount to sexual harassment. Beware of voluntary engagement in activity, which cannot be harassment if the participation is truly voluntary. But what was once voluntary may cross a line into unwelcome pretty quickly. Prior conduct may not be really harassment, but might prove helpful

Step two: is the conduct creating a hostile environment. Quid pro quo harassment is easy to identify and is pretty much assured of creating a hostile environment for unwelcome conduct. But other hostile environment requires pervasive and ongoing conduct. A single off color joke might be enough for quick reminder about the harassment policy, but probably isn’t enough to be harassment. Also be aware that hostile work environments may involve many isolated incidents which individually wouldn’t amount to harassment, but might result in harassment when viewed as a whole.

If the analysis of the facts yields two yes answers, it is time to act. If there are two no answers or one yes and one no, you probably don’t have sexual harassment but you do have an HR issue that needs to be addressed quickly.

When at all possible, the investigator should present the findings, but allow others to make recommendations as to the discipline needed. Having others determine appropriate discipline allows those managers to judge the facts as discovered and avoid the biases that may have developed in the investigator.

Discipline should follow the guidelines of the company and should be reasonable. It may be easy to simply fire someone, but remember, that person who is fired might also have claim. A solid finding of quid pro quo might be enough to show the harasser the door. But a hostile work environment might be the function of lack of training, lack of knowledge or simply a lack of attention to the situation and people around them.

Be sure to close the loop with the charging party. If the harasser is fired, that is pretty easy, but if there is less severe discipline imposed, remember that the harasser does not necessarily have the right to know what the discipline is.

One last word on investigations.

Document, document, document, document. Document each interview, maintain notes on each interview, keep copies of all documentary evidence, put all the facts and data collected into a folder. Keep those records in a safe place and keep copies. If the charging party files a claim with the EEOC or the state, then having records of your investigation will go a long way toward helping avoid consequences against the business.

As always, in this subject matter, when in doubt consult counsel.

Do you have a story of an investigation you would like to share? I would love to hear from you and maybe include it in a case study.