By Brad Ryder
Once a company has received a complaint of employment-related harassment, it must act quickly and decisively. Due consideration should be given to each of the following:
- Separate the harasser and victim during the investigation, but do not inconvenience the victim, unless it is at the suggestion or request of the victim.
- If the working conditions do not permit separating the victim from the harasser, put the harasser on administrative leave (paid or unpaid) pending the investigation.
- Does the person who is to conduct the investigation have a prior relationship with the harasser, victim, or any of the witnesses involved?
- If so, will such a relationship either interfere with or create the appearance of interfering with the investigator’s ability to remain impartial?
- Does the harasser have any managerial authority (direct or indirect) over any of the individuals who would be responsible for conducting the investigation?
- If so, it is best to have outside counsel or another firm conduct the investigation.
- Does either the harasser or the victim work in the Human Resources Department (even if not in a managerial capacity)?
- If so, it may be advisable to have outside counsel or another firm conduct the investigation.
- Prepare an investigation plan, to include a timeline for completing each task.
- Review all applicable policies and procedures.
- Prepare for each interview by writing out topics / questions, but only after thoroughly reviewing all pertinent personnel files, performance evaluations, and other related documents.
- Meet with each witness in person, not remotely or by telephone conference, unless this is impracticable.
- Put thought into where the interviews should be conducted. For example, consider whether an employee might be intimidated if they are required to come to the corporate office and sit in the conference room.
- Two people should be present when meeting with witnesses and conducting the interviews. One person will ask the questions and the other person will take notes.
- Take extensive notes of what each witness says during the interviews.
- Type out the notes as soon as time permits, preferably prior to the next interview, and share them with the primary interviewer.
- Consider whether you want each witness to provide a handwritten statement. If a handwritten statement is obtained from any witness, one should be obtained from all witnesses – do not pick and choose.
- Document the entire process, to include times, dates, and locations of all interviews.
- Consistently apply this process throughout the investigation.
Upon receipt of a complaint of harassment or discrimination, it is imperative that the victim and harasser be separated, so as to minimize the likelihood of any further incidents. Additionally, consideration should be given to who is going to conduct the investigation, who will be interviewed, and other related issues.
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.
