By Brad Ryder
An effective investigation of a complaint of harassment or discrimination must be comprehensive and not limited to interviewing the victim, harasser, and any witnesses. Oftentimes, the tangible evidence may provide a more accurate account of what actually happened. Therefore, it is imperative to promptly do each of the following:
- Take all necessary measures to prevent the harasser from having access to any of the evidence that would support the allegations that have been made by the victim until the investigation is completed.
- Obtain, review, and preserve all tangible evidence, including:
- E-mails, text messages, social media posts, search engine history, and other data on all company-issued electronic devices (i.e., computers, cell phones, and tablets) to which the harasser or the victim had access. Look for communications between or about the harasser and/or the victim.
- Timesheets of the harasser and victim for the applicable period of time.
- Video security footage, if applicable.
- Security logs to see if the victim and the harasser were in the same area at the times/dates when the alleged harassment occurred.
- Personnel files of the harasser and the victim, to include job applications and all performance evaluations.
- Go to the scene where the alleged harassment occurred. Consider what the witnesses said about what they saw and what they heard. Place particular emphasis on how far apart they were, their lines of sight, etc.
- Prepare a chain of custody log that identifies all physical evidence, when and how the evidence was obtained, who obtained the evidence, where the evidence has been stored since it was obtained, and who has maintained control and possession of the evidence.
An integral part of investigating allegations of employment harassment is to obtain, review, and preserve all tangible evidence, with particular emphasis on data stored on any company-issued electronic devices and social media sites. By taking the measures outlined herein, the company will be in a better position to justify its action and to be able to use such evidence in any ensuing litigation.
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.
