Investigation 101—Confronting the Alleged Offender

For help we turned again to HRhero/BLR’s Workplace Investigations: the HR Manager’s Step-by-Step Guide written by attorney Jody Shipper.

Interviewing the Alleged Offender

Shipper suggests HR investigators consider the following as they prepare to interview an employee about whom a complaint of harassment or discrimination has been lodged:

• Allow as much time as necessary
• No matter what conduct is alleged, be straightforward and unbiased in presenting the complaint.
• Don’t use cute terms to discuss body parts.
• Make sure you allow the accused to tell his or her side of the story.
• Decide whether to give the alleged offender the name of the accuser. Consider:
• Whether the accuser is not the victim
• Whether many others witnesses the event
• Whether the offender needs to know to offer a meaningful response
• Whether revealing would increase the risk of retaliation
• Ask for names of witnesses
• Ask for documents (including emails) that might shed light on the situation
• Ask for suggestions of other documents you should seek out
• If the alleged offender claims that the allegations are false, ask for reason(s) why the complaining party would make up the allegation or exaggerate facts to support the allegation
• Ask the alleged offender to supply a list of names of witnesses with a brief summary of what those witnesses may know or may have seen.
• Ask that the alleged offender (and all participants) keep the allegations and information discussed during the interview confidential
• Review the policy against retaliation, which should also include threats of retaliation or attempts at retaliation. Make clear that this policy applies not only to the complaining party, but also to any person assumed to be complaining, any witness, or any person assumed to have been a witness or participant.
• If the alleged offender is a supervisor, get the names of others he or she has supervised.
• Inform the accused that no conclusions will be made until the investigation is complete.

In addition, depending on the exact allegations, you may wish to request other specific information from the alleged offender. If, for example, there is an allegation of sexual harassment, you might ask:

• Did the complaining party ever inform the alleged offender that the conduct was unwelcome? If so, how and when?
• How did the complaining party respond to the conduct under investigation?
• How does the alleged offender characterize the conduct of the complaining party?
• Has the alleged offender ever gone out with the complaining party socially?
• Does the alleged offender have any documents concerning the complaining party of the incidents that are the subject of the investigation?
• Has any other manager or employee ever requested that the alleged offender refrain from the type of incident that is the subject of the investigation?

Sooner or later, every HR manager is going to be doing harassment and discrimination investigations. And you have to do them right, because you’ll be examined in depth on the witness stand about how you did it, why you interviewed certain people and not others.

Be sure you’ve got the tools and knowhow to accomplish an investigation that will stand up in court