By Brad Ryder
One of the keys to a successful investigation of a complaint of employment-related harassment or discrimination is to interview all witnesses to the alleged misconduct. The first person to be interviewed will, in most instances, be the individual who brought the allegations to the company’s attention. This person may be the victim or another employee who merely witnessed or otherwise learned of the alleged harassment. When conducting the interviews, the following topics should be covered:
- Assume that a lawsuit will be filed and each of the witnesses will testify at a later date.
- Make an effort to put each witness at ease.
- Try to get the witnesses to provide names, without the interviewer first identifying anyone by name.
- Ask open-ended questions and give the witness ample time to respond – silence is your friend.
- Focus on who, what, where, when, and how:
- Who was present?
- What happened?
- Where did it happen?
- When did it happen?
- Is this information based on personal observations or what someone else said that they observed?
- Get details, but do not lose sight of the big picture.
- Ask about the relationship between the victim and the harasser (e., are they friends?; do they go to lunch together?).
- Ask the witness to contact you in the event that he/she thinks of anything else and explain that you may contact him/her if you have any other questions.
- Tell the witness not to discuss with anyone else what you have discussed, preferably even that you have met about the allegations.[1]
- Review all notes before interviewing the next witness.
- Revisit the initial investigation plan after each interview to determine what, if any, modifications should be made.
Typically, the most important phase of any investigation of harassment or discrimination is interviewing the victim, harasser, and all witnesses. Due consideration should be given to the order in which the interviews are to be conducted and the questions to be asked of each witness.
If you have questions about drafting employment policies, investigating claims of harassment or discrimination, or other employment-related issues, feel free to contact me at (256) 534-3288 or brad@ryderlaw.com.
This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.
[1] Although there might be issues about whether a prohibition on discussing an ongoing investigation constitutes an unfair labor practice under 29 U.S.C. § 158, the company should take the position that such a prohibition does not interfere with employees’ rights under 29 U.S.C. § 157 to organize or engage in collective bargaining.
