['Sexual Harassment', 'Discrimination']
['Hostile environment', 'Protected classes', 'Title VII (The Civil Rights Act of 1964)', 'Discrimination', 'Sexual Harassment']
05/17/2022
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
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Employers are expected to respond promptly and effectively to a harassment claim, which usually involves starting an investigation. In some cases, a formal investigation won't be necessary. If the complaint involves a single incident where only two or three people are involved, a simple conversation with the accused person and the person who complained might be enough to get all the facts.
For instance, you might receive a complaint from a female employee that a male employee "patted her behind." On questioning her, she might state that he's never done anything like that before, and this incident was the first and only event that made her uncomfortable. Upon talking to the male involved, he admits that it was a foolish thing to do and says it won't happen again.
At this point, you might have a conversation with the male about why the action was wrong, and state that any retaliation against the woman who made the complaint will result in discipline. You might also have a conversation with the female and ask her to report any future incidents. Other than that, the issue might be resolved.
In other cases, the process of identifying exactly what happened, who was involved, and what should be done could take substantially longer. Issues that could affect the extent of an investigation include how many people are accused and affected, the status of those involved (such as supervisors), and the damage done (such as loss of job status).
Regardless of the nature of the alleged action, all investigations should share certain elements. The investigation will include interviews with the complainant, the alleged offender, and any witnesses. In the case of conflicting statements, evaluations of credibility will have to be made. The investigator should also review records for patterns of past complaints - either against the alleged offender, or by the person who complained.
For purposes of this article, the terms "victim" and "complainant" are used interchangeably, even though not all complainants can be characterized as victims.
The parties involved should also be assured that the information will be kept as confidential as possible, and that the company won't tolerate retaliation. Finally, the investigator must determine what action should be taken, including any follow-up that may be required to ensure that the conduct stopped and that no retaliation has occurred. Ideally, this process will settle the dispute so the unwanted behavior stops and the claim doesn't get filed with a state or federal agency (or end up in court).
Basics of an Investigation
An investigation should be prompt, thorough, and impartial. A prompt investigation, followed by appropriate corrective action, can help prevent future incidents. You should conduct an investigation on every complaint, to the extent required.
A prompt investigation helps indicate your sincerity in getting to the bottom of the situation, while delays might indicate that you're not taking the complaint seriously. Gathering evidence (which usually means conducting interviews) should be done as soon as possible, both to obtain statements while witnesses' memories are fresh, and to prevent additional incidents.
A thorough investigation is not determined by its duration, but by its completeness. You should ask impartial and pertinent questions, review records as necessary, and document the results. For example, if the alleged offender doesn't deny the accusation, further interviews may not be necessary, unless there's a possibility of other victims or other harassers.
If a more detailed investigation is needed, a specific individual should be designated to lead the investigation. This person should be well trained in the skills required for interviewing witnesses and evaluating credibility.
The impartiality of the investigation depends on the investigator and others who interpret the findings and administer any corrective action. The alleged offender should not have supervisory authority over the individual who conducts the investigation, and should not have any direct or indirect control over the investigation. The quality of the investigation will determine the effectiveness of your response.
While an investigation is pending, it may be necessary to take interim measures, like separating the parties, to ensure that the conduct does not continue. These interim measures should not adversely affect the victim. If it's necessary to separate the parties, the alleged harasser should be transferred (unless the complainant prefers otherwise). Actions that penalize the victim could constitute unlawful retaliation and are not effective in correcting the discrimination.
Tips for Investigators
Investigators should follow these guidelines during investigations:
- Be objective, don't make assumptions or jump to conclusions.
- Be sensitive to all witnesses, but don't attempt to empathize.
- Check personnel records for any previous complaints.
- Document the interviews and prepare a written report of the findings.
- Give the victim and the alleged offender a letter or statement concerning the findings and what is being done.
- Take or recommend immediate and appropriate corrective action, if warranted.
Identify and Interview Witnesses
The investigator should interview the complainant, the alleged offender, and others who could have relevant information. The first step is determining who should be present during interviews. The parties involved should be interviewed privately, one at a time. However, a supervisor who conducts an interview may want a third party, like someone from Human Resources, present during the interview.
The presence of a neutral third party can help alleviate any concerns that the complaint is "only" being handled by an immediate supervisor. It can also help preserve the integrity of the investigation if there are later complaints about the conduct or behavior of the interviewer. Finally, a second person can help "read" the witness for later evaluations of credibility, which is especially helpful when the supervisor is busy taking down notes.
The interviews should be documented, but because of the question-and-answer format of the interview, it may not be feasible for the parties to simply write out a statement. A written statement can be obtained, of course, but during the interview, the interviewer or third party should also take notes. These notes can later be written up into a statement for the witness to read and sign to verify their accuracy. During a review of the interview notes, the person may have changes or corrections to suggest when they see the information in writing.
When interviewing the parties and witnesses, the investigator should refrain from offering an opinion. The same comments that are inappropriate when receiving a complaint ("you must have felt awful" or "that was a terrible thing to say") should be avoided during interviews. These statements might unintentionally create an expectation about the outcome of the investigation.
Where to Begin?
Most investigations will begin with an interview of the person who complained or was affected by the conduct. This person could have been identified because he or she complained of unwelcome behavior, or a supervisor may have witnessed the event. Remember that the person affected does not have to be the person directly harassed.
From there, the investigator can interview the alleged offender and obtain his or her side of the story. Remaining neutral is key to obtaining both sides of the story. There are any number of reasons for one party to exaggerate, leave out details, or otherwise give a less-than-accurate picture of the alleged events. Naturally, there have been cases of the accused attempting to lie about the events.
Finally, the investigator should identify any other witnesses, usually by asking the victim and the alleged offender if anyone else may have information. These "third party" witnesses can be crucial to establishing the facts in a "he said / she said" situation.
Interviewing the Complainant
Interviewing the person who complained usually begins by asking for a statement of the facts. The interviewer should determine what was said or done, who was involved, and when the events occurred. A few example questions are provided below.
Ask the complaining person if anyone might have witnessed the events, and if the complainant talked to anyone else about the events. The investigator will later ask the same questions of anyone else who was affected or was a witness.
Information about the personal lives of the parties outside the workplace would only be relevant in unusual circumstances.
Keep in mind that some people are more sensitive and react differently to the same situation. For example, while one person may find a series of ethnic jokes to be humorous (even a person of that ethnicity), another person might find them offensive (even someone not of that ethnicity). That's why the "reasonable person" standard was developed.
Remember, interviews with the complainant should provide reassurance that coming forward was the right thing to do. The interviewer should also provide reassurance that retaliation from the employer will not occur, and that any retaliation from others will not be tolerated. However, the interviewer should refrain from offering opinions about the alleged actions.
When asking if there are any witnesses, remember that witnesses could include anyone the complainant talked to about the alleged actions. The person may not think of these people as witnesses if they didn't actually observe the events. However, they can still add to the credibility of the complainant's report.
In many cases, there might not be any witnesses. Sexual harassment, in particular, tends to occur away from the eyes of witnesses, and the situation may come down to one person's word against another.
Questions to Ask the Complainant
- Who committed the alleged discrimination?
- What exactly occurred or was said? When and where did it occur? (The more detail, the better.)
- How often did it occur? Is it still ongoing?
- How did you react? What response did you make when the incident(s) occurred or afterwards?
- How did it affect you? Has your job been affected in any way?
- Who else might have information? Was anyone present when the behavior occurred? Did you tell anyone about it? Did anyone see you immediately after these episodes?
- Were any supervisors aware of the conduct? Did the person harass anyone else? Do you know if anyone else complained about discrimination 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?
Interviewing the Alleged Offender
Interviews with the alleged offender should be conducted in a similar manner as interviews with the victim. Again, the goal is to remain neutral while obtaining the relevant facts, determine who else may have information or may have witnessed the events, and consider any credibility issues.
Questions to Ask the Alleged Offender
- What is your response to the allegations? (If the person claims 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?
Interviewing Other Witnesses
The same principles apply once again when interviewing other witnesses. Remember that witnesses are not limited to those who directly witnessed the events described. For example, if a woman was sexually harassed, and was seen soon afterward by someone who can verify that she was distraught, that person can serve as a witness and give credibility to her statement. In similar cases, the person affected might relate the events to a friend or co-worker after the incident, and these people can also serve as witnesses.
Questions to Ask Third Parties
- What did you see or hear? When did this occur?
- Describe the alleged offender's behavior toward the complainant and toward others in the workplace.
- What did the complainant tell you? When did she or he tell you this?
- Do you know of any other relevant information?
- Are there other persons who have relevant information?
Reviewing Records
Check your personnel records to see if the victim has filed previous complaints, or if the person accused has had complaints made against him or her in the past. For example, if the person making the complaint has just received a poor performance review, the complaint may be an effort to avoid discipline.
The investigator should also consider the context of the allegation and whether any "history" exists between the complainant and the alleged offender. For instance, if the person making the complaint filed complaints against three previous supervisors right after reviews that indicated performance issues, the investigator might give less credibility to the statement. A complaint should not be summarily dismissed, but certain documentation can be used to evaluate the credibility of a statement.
Similarly, a sexual harassment complaint might be difficult to evaluate if the two parties previously had a romantic relationship. However, this doesn't negate a charge of discrimination since the definition of harassment is unwanted behavior.
In many cases, a discrimination complaint is filed after a number of less frequent or less severe incidents of unwelcome behavior, like teasing or offhand remarks. It's possible that the person is only reporting the most recent incident, or that others filed complaints against the accused. The investigator should determine if any such history exists.
The investigator should also determine if the complainant talked to anyone else about the conduct. The victim may not volunteer those people as witnesses because they weren't present to directly observe the offensive conduct. However, their testimony could help determine the credibility of witnesses, especially in a "he said / she said" situation.
Confidentiality Assurances
The issue of confidentiality raises some problems. Naturally, only the people who need to know about the events should be told, and all parties should be informed not to discuss the issue with anyone else in the workplace. Records relating to discrimination complaints should be kept confidential on the same basis.
As tempting as it might be to guarantee complete confidentiality to the victim, you simply can not do so. The accused will have to provide the other side of the story, and won't be able to do so without knowing the precise events about which he or she is accused.
The confidentiality of the victim, the alleged offender, the witnesses, and any others who are involved should be protected to the extent possible. Assure each party that information will be shared only with those who have a need to know, and provide reassurance that retaliation will not occur from the employer.
A conflict between an employee's desire for confidentiality and the company's duty to investigate may arise if an employee complains to a supervisor, but asks that the matter be kept quiet, with no action taken. The company can't guarantee complete confidentiality because it can't conduct an effective investigation without revealing certain information to the alleged offender and potential witnesses.
While it may seem reasonable to let the employee determine whether to pursue a complaint, the company has a duty to prevent and correct discrimination. Unfortunately, this may discourage some employees from reporting offensive conduct because they don't want a complaint about a few jokes or gestures to result in an investigation.
To help avoid such conflicts, the company can set up an informational phone line or other method of contact for employees to discuss questions or concerns about discrimination on an anonymous basis. The contact line would provide information about discrimination issues, but make it clear that calling this line does not constitute the filing of a complaint - it is for information only. To inform the company, the employee would still need to follow the complaint procedure.
Evaluating Credibility
In many cases, discrimination doesn't occur in front of witnesses. You may face a "he said / she said" situation, especially in cases of sexual harassment, or cases where certain employment decisions were made (like denial of a promotion). Despite the lack of witnesses, the company must investigate and determine the credibility of the evidence. The testimony of each party must be weighed and assessed to determine which story is most plausible.
Credibility assessments help determine the direction of the investigation. Questionable testimony should be verified by other testimony or other evidence, if possible. Decision makers and investigators should make recommendations on credibility, especially when documentation is lacking.
Example Situation
An employee complains that he suffered from constant ethnic slurs made by two employees who work near him on an assembly line. His statements might be deemed less credible if the noise level in the work area would have prevented him from hearing the comments. This doesn't mean his statement is untruthful, but additional details or other verification may be needed.
In some cases, the investigator may find that the alleged offender's explanation is not believable, despite a lack of evidence supporting the complaint. For example, if a supervisor against whom a previous complaint was made attempts to discredit the current complaint by criticizing the victim's performance, character, or reliability, (especially when recent performance reviews don't reflect these characterizations) the investigator might question the supervisor's overall credibility.
If there are conflicting versions of the events, the investigator must determine each party's credibility. Factors to consider include:
- Plausibility: Is the testimony believable? Does it make sense?
- Demeanor: Does the person seem to be telling the truth or lying?
- Motive: Does the person have a reason to lie?
- Corroboration: Does other testimony (eye-witnesses, people who saw the person soon after the alleged incidents, or people with whom the victim discussed the incidents) or physical evidence (such as documentation) support the testimony?
- Past record: Does the alleged offender have a history of similar behavior?
None of the above factors can exclude credibility. For example, the fact that the alleged offender engaged in similar behavior in the past does not necessarily mean that he or she did so again.
Credibility should be assessed in every investigation and for every person interviewed to ensure a thorough investigation. Upon completion of all interviews and review of all evidence, the investigator should prepare a written recommendation based on the facts discovered and evaluations of credibility.
Reaching a Determination
When all the evidence is in, interviews are finished, and credibility issues are resolved, a determination must be made as to whether discrimination has occurred. That determination could be made by the investigator or by a management official who reviews the investigator's report. The parties should be informed of the determination. Sometimes it will be difficult to reach a determination because of contradictions and a lack of documentation or witness corroboration. In such cases, a credibility assessment may form the basis for a determination.
If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventative measures, such as training and monitoring the situation.
Taking Corrective Action
The company must take immediate and appropriate corrective action, including discipline, whenever it determines that discrimination has occurred. The company should inform both parties about these measures.
Remedial measures should be designed to stop the discrimination, correct its effects on the victim, and ensure that the behavior does not recur. The offender may need to be disciplined, but the discipline should be appropriate to the misconduct, based on factors like context, frequency, and severity, as well as the impact on the complainant and whether the person previously engaged in similar misconduct.
Corrective measures might include oral or written warning; demotion; reduction of wages; suspension; training or counseling; and monitoring of the offender to ensure that the conduct stops. The remedial measures need not be those the employee requests or prefers, as long as they are effective.
If the discrimination was minor, such as a small number of tasteless remarks by someone with no prior history of misconduct, then counseling and a verbal warning might be reasonable. On the other hand, if the discrimination was severe or persistent, or resulted in a tangible employment action, suspension or discharge may be appropriate.
Remedial measures should also correct the effects of the discrimination on the victim, and put the employee in the position she or he would have been in had the misconduct not occurred. Such measures might include:
- Restoration of leave taken because of the discrimination,
- Reinstatement,
- Apology by the offender,
- Monitoring to ensure that the employee is not subjected to retaliation, and
- Correction of any other harm caused by the discrimination (e.g., compensation for losses).
After the investigation is complete and appropriate corrective actions have been taken, it may be necessary to follow up with the person affected, and with any witnesses, to ensure that no retaliation is taking place.
Other Preventive Measures
Periodic training of supervisors and managers can help ensure that they understand their responsibilities. Training should explain:
- The types of conduct that violate the company's anti-harassment policy;
- The seriousness of the policy;
- The responsibilities of supervisors and managers when they learn of alleged discrimination; and
- The prohibition against retaliation.
The company should keep track of supervisors' and managers' conduct to make sure they carry out their responsibilities to prevent and address discrimination, and should review such performance in formal evaluations.
Reasonable preventive measures by the company also include screening applicants for supervisory jobs to see if any have a record of engaging in discrimination harassment. If so, it may be necessary to reject a candidate on that basis or to take additional steps to prevent offenses by that individual.
Finally, the company should keep records of all complaints of discrimination. Without such records, the company could be unaware of a pattern of discrimination by the same individual. Such a pattern would be relevant to credibility assessments and disciplinary measures.
If the employer fails to take immediate and appropriate corrective action, it may be liable for punitive and compensatory damages if the complaint becomes a lawsuit.
Punitive damages can be used to punish the company for intentional discrimination. Compensatory damages (for emotional pain, suffering, inconvenience, mental anguish, etc.) may also be awarded.
When Things Go Too Far
The above information assumes everything can be handled internally (within the company), but in some cases, you'll be dealing with federal or state enforcement agencies, or even find yourself in court.
Always Investigate
In some cases, employees will bypass the internal complaint procedure, and the first you'll hear of a complaint is a notice from the Equal Employment Opportunity Commission (EEOC) or other agency. At that point, you should still immediately launch an internal investigation to identify witnesses and determine the facts.
EEOC Investigations - What You Should Know
You will always be notified when a charge of discrimination has been filed, and you'll be provided with the name and contact information of the investigator assigned to your case. The EEOC will investigate and determine if there is reasonable cause to believe discrimination has occurred.
In many cases, you may opt to resolve a charge through mediation or settlement. At the start of an investigation, the EEOC will advise you if your charge is eligible for mediation, but you can ask the investigator about the settlement option. Mediation and settlement are voluntary resolutions.
During the investigation, you will be asked to provide information for your investigator to evaluate and determine if unlawful discrimination has taken place. You may be asked to:
- Submit a statement of position. This is your opportunity to tell your side of the story and you should take advantage of it.
- Submit copies of personnel policies, the complainant's personnel files, the personnel files of other individuals, and other relevant information.
- Permit an on-site visit. These visits might sound invasive, but they can expedite the fact-finding process and may help achieve a quicker resolution.
- Provide contact information for employees, or make them available for witness interviews. You may be present during interviews with management personnel, but an investigator can conduct interviews of non-management employees without your presence or permission.
If the charge was not dismissed by the EEOC when it was received, that means there was some basis for further investigation. There are many cases where it's unclear whether discrimination occurred and an investigation is necessary. You will be able to present any facts that you believe show the allegations are incorrect or do not amount to a violation. Your input will assist the EEOC in promptly and thoroughly investigating the charge. You may also wish to consult with an attorney.
You should submit a prompt response to the EEOC and provide the information requested, even if you believe the charge is frivolous. If circumstances prevent a timely response, contact your investigator to work out a new due date for the information.
If you have concerns regarding the scope of the information being sought, advise the investigator and/or consult your attorney. Although the EEOC is entitled to all information relevant to the allegations, and has the authority to subpoena such information, in some instances, the information request may be modified (or might be quashed by your attorney).
Keep all relevant documents. Be aware that some email programs will automatically delete messages after a certain time. If you have such programs, make certain that any relevant documentation is not inadvertently lost.
Your investigator will:
- Be available to answer most questions about the process.
- Keep you informed about the charge process, including the rights and responsibilities of the parties.
- Allow you to respond to the allegations.
- Inform you of the outcome of the investigation.
Once the investigator has completed the investigation, the EEOC will make a determination on the merits of the charge.
If the EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party he or she has the right to file a lawsuit in federal court within 90 days. The employer will also receive a copy of this document.
If the EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating this and inviting the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation.
Where conciliation fails, the EEOC can enforce violations by filing a lawsuit. If the EEOC decides not to litigate, the charging party will receive a Notice of Right to Sue and may file a lawsuit within 90 days.
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['Sexual Harassment', 'Discrimination']
['Hostile environment', 'Protected classes', 'Title VII (The Civil Rights Act of 1964)', 'Discrimination', 'Sexual Harassment']
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.