Top 10 tips for conducting an effective sexual harassment investigation

by Lauren M. Cooper

Employers must take all reasonable steps to prevent harassment from occurring. You must also promptly correct any sexually harassing behavior that has occurred. Effectively investigating harassment complaints and promptly intervening are critical to both of those goals. Prevention of the harassing behavior is the ultimate objective. Effective and immediate intervention also serves to minimize the injury to the victim and sends a clear message throughout the workplace that harassment is not tolerated. What follows are the top 10 tips for conducting an effective sexual harassment investigation.

#1: Promptly report the employee’s complaint
Supervisors should immediately report any complaint of sexual harassment to the HR department or any other individual identified as the person with ultimate responsibility for enforcing the company’s policies against unlawful harassment. Often, supervisors mistakenly suggest to a complaining employee that she has the responsibility of reporting the problem to another person, such as the director of HR. An employee may feel discouraged when she is directed to another person, or she might simply fail to contact the additional person to report the complaint. When that occurs, the interests of both the employee and the employer are compromised because the complaint isn’t promptly investigated or even addressed at all in some cases. Therefore, supervisors and managers should be trained to assume personal responsibility for contacting HR directly if they receive a complaint.

#2: Promptly initiate the investigation
You may have all the right policies and your investigation may be thorough, but it’s difficult to argue that you take harassment complaints seriously if you wait two months to start an investigation. Instead, initiate investigations immediately, and complete them as soon as possible. If there are unavoidable delays, document the reasons for the delays, and inform the concerned parties of the results once the investigation is complete.

#3: Be familiar with EEOC guidelines
A favorite tactic of employees’ attorneys is to attack an employer’s investigation by showing how it fell short of the Equal Employment Opportunity Commission’s (EEOC) guidelines on how to conduct an effective inquiry into unlawful harassment. The guidelines include advice on how to reach credibility determinations, protective measures to take during the investigation, and even specific questions to ask the victim, the accused, and any witnesses. The guidance is available on the EEOC’s website at www.eeoc.gov/policy/docs/harassment.html. Don’t initiate an investigation before familiarizing yourself with these guidelines.

#4: Develop adequate documentation
Every investigation should be documented with the worst-case scenario in mind ― that is, the investigator facing cross-examination in front of a jury about every sentence in the investigation report. Reports should be thorough and thoughtfully written. Ideally, witness statements should be signed by the witnesses. When offering conclusions about a witness’ credibility, the investigator should set forth the objective basis for his determination. For example, the witness’ demeanor and motives, the extent of corroboration by other witnesses or evidence, and any history of similar accusations or conduct should all be documented.

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#5: Interview all potential witnesses
You should ask the complaining employee to identify any witnesses who might have relevant information. Also, you should interview coworkers of the accused, who may be able to provide information about whether they have seen him engage in similar conduct. If coworkers have witnessed the alleged harasser engaging in sexually harassing conduct in the past, that can have a huge impact on the outcome of the investigation. Additionally, make sure to interview all witnesses identified by anyone you speak with, including former employees when possible.

#6: Take interim remedial measures during the investigation
Too often, employers focus only on which remedial measures to take after the investigation is complete. However, depending on the circumstances, you may need to take temporary remedial measures during an investigation. For example, in a sexual harassment investigation, the EEOC guidelines and case law suggest that you separate the complaining employee from the alleged harasser until the investigation is complete. However, that doesn’t mean involuntarily transferring or increasing the workload of the complaining employee, which may be seen as retaliation.

#7: Take steps to avoid retaliation
Everyone concerned, including HR representatives, supervisors, and managers, should be extremely sensitive to the rules prohibiting retaliation. In most cases, conduct that could be viewed as retaliatory, whether it’s committed by the accused or others, can lead to additional liability. It’s therefore imperative that the complaining employee, the accused, and everyone else who is interviewed as part of the investigation be advised, as soon as possible, that you will not tolerate any form of unlawful harassment or retaliation against the individual who made the claim or anyone who participated in the investigation into the claim. And, as always, document that you’ve made that statement.

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#8: Remember that confidential complaints still count
Every employer has probably confronted this problem at least once: An employee complains to a supervisor that a coworker engaged in inappropriate conduct but asks the supervisor to “keep it between us for now.” That’s usually because the employee fears retaliation. In this situation, the supervisor should explain to the employee that the company will do everything possible to keep the matter confidential, but it faces legal liability if it doesn’t investigate every complaint. You shouldn’t promise absolute confidentiality but instead state your intent to provide confidentiality to the extent practical.

Most important, you should assure the employee that company policy prohibits retaliation and that she should immediately report any retaliation to her supervisor or HR. Remember, in California, an employer isn’t liable for harassment by a nonsupervisory coworker unless it “knew or should have known” about the harassment and failed to remedy it. Even a “confidential complaint” puts the company on notice, however.

#9: Avoid prejudging complaints
It’s important not to prejudge complaints. In some cases, invalid claims are innocently filed because of a failure to comprehend the law or the applicable legal standards. In other cases, harassment claims are filed to retaliate against supervisors an employee dislikes or to shield the employee from responsibility for his own performance deficiencies. Unfortunately, some individuals use sexual harassment laws as a tool to harass and retaliate against others who are themselves innocent victims of such claims. Until a claim is fully and carefully investigated, you shouldn’t form conclusions about guilt or innocence.

To ensure a completely unbiased investigation, be sure it’s conducted by an individual who doesn’t immediately supervise or have a close relationship with the complaining employee, the accused, or any key witnesses.

#10: Be consistent
All complaints, even seemingly minor ones, should be investigated thoroughly, and similar incidents should result in similar discipline. One of the most common mistakes employers can make is to protect a high- level executive, top producer, or favored employee who has been accused of harassment while implementing more serious discipline against other employees accused of similar conduct. While the law allows employers fairly wide latitude in determining the appropriate level of discipline, it’s critical that like cases be treated alike, regardless of the relative “stature” of the parties involved. Having the same person or group of individuals handle all complaints of sexual harassment can standardize the process and help ensure consistency.

Bottom line
Whether an employee comes to you with a seemingly small gripe or a complaint about egregious conduct, you are legally required to look into the matter and engage in a prompt and thorough investigation. There may be many reasons not to conduct an investigation, but there really is no good reason.

Lauren Cooper is an attorney with Epstein Becker Green in the firm’s Labor and Employment practice in San Francisco, California.  She can be reached at LMCooper@ebglaw.com

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