By Brad Ryder
Once the investigation has begun and both the individual who reported the alleged harassment and the victim (who may be the same person) have been interviewed, the next critical step is determining the order in which the witnesses and the harasser should be interviewed. This is a strategic decision, based in large part on the evidence obtained up to that point in the investigation. In choosing the better alternative, there are at least two different schools of thought:
- Interviewing the harasser first may:
- Allow the harasser an opportunity to communicate with the witnesses before you do, in an effort to “explain” his/her conduct before the other witnesses are interviewed, which could affect the statements provided by those witnesses.
- Limit the scope or specificity of questions, as the interviewer will not have the benefit of information from various other witnesses;
- Increase the likelihood of needing to conduct a second, or even third, interview of the harasser after the other witnesses have been interviewed.
- Allow for easier transition if the harasser must be separated from the victim during the investigation.
- Afford the harasser less opportunity to determine what the other witnesses have said during interviews, making it more difficult for the harasser to modify his/her statement to justify improper conduct.
- Interviewing the other witnesses before interviewing the harasser may:
- Increase the likelihood that the harasser will be more prepared to justify or explain conduct to conform with what other witnesses have said.
- Decrease the likelihood of witness tampering.
- Require you to explain to the harasser that a complaint has been made and to separate the harasser from the victim prior to interviewing the harasser.
While both approaches have their pros and cons, it is generally best to interview the harasser first, with the understanding that follow-up interviews may be necessary. However, this decision should be made on a case-by-case basis after due consideration is given to the statements provided by the individual who reported the alleged harassment and the victim, along with all other pertinent documentation and related evidence.
If you have questions about drafting employment policies, investigating claims of harassment or discrimination, responding to a Charge of 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.
