8 traps to avoid when investigating a sexual harassment complaint

Don’t rush to judgment—in either direction

Back in the bad old days when employers didn’t take sexual harassment seriously, harassment complaints were ignored or swept under the rug. To the extent they were investigated at all, the tendency was to downplay the complaint as exaggeration, fabrication or oversensitivity on the part of the victim.

The good news: Today’s employers “get it.” All but the most Stone Age of them understand the implications of sexual harassment complaints and the liability and embarrassment they can bring to the firm.

The bad news: Employers are still rushing to judgment, only now they’re going in the opposite direction. The modern tendency is to assume that employee sexual harassment accusations are true and swiftly discipline the accused to control the damage. Such hasty decisions not only fail to contain the problem but actually make it worse.

And that brings us to the moral of this story: Your liability for sexual harassment is based not only on your policies and attitudes but on how you investigate complaints. To conduct a reasonable investigation the inquiry must be not just thorough but fair and account for the rights of both accuser and accused.

As a practice manager, you’ll probably play a key role in the investigation. So it’s critical to be aware of the mistakes that can mar your sexual harassment investigation and make your practice liable—regardless of whether the accusation is actually true. We’ve looked at court cases and rulings by arbitrators and tribunals including the federal Equal Employment Opportunity Commission and identified eight things you need to be on the lookout for.

Mistake 1: Waiting too long

You must investigate promptly. Over time, memories fade, witnesses leave the firm and physical evidence disappears. In addition to compromising the evidence, delaying an investigation undermines its effectiveness and puts additional strain on the accuser, accused and other parties involved.

• Firm loses: Court rules that an employer’s investigation of sexual harassment was unfair because of “excessive” and “unreasonable” delay—the complaint was made in October and not investigated until April.
• Firm wins: Court praises employer for starting investigation within a day of receiving the first allegation of sexual harassment from a summer employee who claimed a supervisor made unwanted sexual comments.

Practice tip: Keep in mind that while speed is important it isn’t the paramount concern. Fairness is. Rushing an investigation is just as bad as foot dragging. So, for example, it was unfair for an employer not to give the accused enough time to respond to allegations in a rush to complete the investigation before the Christmas holiday.

Mistake 2: Using investigator who isn’t objective

The person carrying out the investigation must be completely impartial and not related to or in any other special relationship with either the accuser or accused. That’s why managers shouldn’t investigate subordinates and vice-versa. Individuals also shouldn’t investigate if they have a history of conflict with the accused or the accuser. Nor should the investigators have a personal or professional stake in the outcome, such as partners determined to use the investigation to cover up wrongdoing in their departments.

Of course, it’s not always easy to find objective and impartial investigators, especially in small practices where everyone knows and may be affected by the outcome of the investigation. And persons who are objective might not be qualified to do a thorough and competent investigation. As a result, you may have to have somebody from outside your practice do the investigation.

Mistake 3: Not getting both sides of story

One common mistake practices make is talking only to the alleged victim. You can’t have a fair investigation unless you also give the accused an opportunity to give his/her side of the story.

You must also give the accused the facts they need to know about the allegations, including dates and specific details, to respond effectively.

• Firm loses: Arbitrator rules that employee accused of sexual harassment was wrongfully fired because the investigation was unfair. The biggest flaw: The firm waited three months before telling the employee what he was accused of.
• Firm wins: Arbitrator upholds firing for harassment because the investigation was fair and the accused employee got a six-page detailed summary of the allegations, including identities of the co-workers who made them and the witnesses who supported them.

Mistake 4: Not interviewing third parties

It’s important to interview not only the accuser and accused but others who may have relevant information about the situation—especially in the all too common he said/she said situations.

• Firm loses: Arbitrator says investigation is flawed because the firm didn’t talk to the two individuals the accused cited as witnesses who would support his side of the story.
• Firm wins: Court says investigation that included interviews of 40 employees is thorough and fair. The investigator started by interviewing the accuser and then interviewed other employees that the accuser mentioned in her story. Those interviews, in turn, led to interviews of additional employees and uncovered a total of five other alleged victims of sexual harassment by the same supervisor, all of whom were then interviewed. The investigator also interviewed the accused four times and gave him an opportunity to respond to the allegations on each occasion.
• Firm wins: Court rules that investigation in which 45 people were interviewed disclosing seven incidents of sexual harassment against seven victims was thorough and fair.

Practice tip: Document the results of interviews and when appropriate get written statements from third party witnesses.

Mistake 5: Asking leading questions

It’s not just how many interviews you do but how you do them. One common interview mistake to avoid is to lead witnesses—that is, phrase questions to set up the witness to respond in a certain way.

Example: Jane accuses the billing manager, Mike, of making inappropriate remarks about her tight clothes not only to her but to her colleague, Megan. So the investigator decides to interview Megan to see if she can confirm the story.

• Bad interview question: “Did Mike ever say anything to you about Jane’s tight clothes?”
• Good interview question: “Did you ever hear Mike make any inappropriate comments about you or any of your colleagues?”

Mistake 6: Interviewing witnesses in each other’s presence

Interviewing the accuser in front of the accused can intimidate the accuser, and vice-versa. Even third party witnesses can be influenced by the presence or statements of others. Result: The testimony becomes less credible as evidence.

• Firm loses: Court slams investigators for failing to warn two witnesses not to confer when putting their complaints of sexual harassment in writing and allowing them to give their accounts together in the same room at the same time.

Practice tip: Be on the lookout for and take steps to minimize the risk of witness collaboration and intimidation. Witnesses should be interviewed separately and not in the presence of other witnesses.

Mistake 7: Not following your practice’s own procedures

A surefire way to taint an investigation is to deviate from your practice’s investigation procedures. Although you can be flexible if the occasion demands it, make sure you have a solid justification any time you depart from normal policy and procedure.

• Firm wins: Court finds it reasonable for employer to depart from its procedure of having supervisors conduct internal and “discreet” investigations of sexual harassment allegations by instead handing the matter over to the police. That’s because the accused was the owner’s brother and calling in the police was necessary to avoid any appearance of bias.

Mistake 8: Not documenting investigation

As lawyers like to say, if it isn’t documented, it never happened. It’s critically important to thoroughly document each step of your investigation so you can retrace your steps and prove that the investigation was thorough and fair.

• Firm loses: Court rules employer didn’t make detailed notes of witness interviews he conducted. He just made a general synopsis of what each witness said. This wasn’t adequate for determining what the witnesses actually said in the interview, said the court.
• Firm wins: Court says investigation is properly conducted, citing detailed notes of interviews and written statements taken from all of the key witnesses.

Conclusion

Sooner or later, one of your employees is bound to complain about being sexually harassed by a co-worker. Such complaints are emotionally disturbing and expose your practice to serious legal risks. But as the practice manager, you need to understand that how you respond to the complaint has just as much impact on your liability as whether the complaint is actually true. The best way to protect your practice is to:

• Recognize that overreacting to a sexual harassment complaint is just as dangerous as ignoring it;
• Help management resist the temptation to “put out the fire” and rush to judgment;
• Remind the decision makers that being accused doesn’t make an employee guilty of sexual harassment;
• Have somebody objective and qualified thoroughly and fairly investigate if the accusation is true; and
• Ensure that the investigation process accounts for the rights of not just the alleged victim but the accuser.

Sexual harassment investigation

DOs & DON’Ts

• DO select an impartial and objective investigator or investigative team
• DO let the accused answer allegations
• DO give the accused detailed information he needs to answer the allegations
• DO interview all relevant witnesses, including those the accused asks you to interview
• DO interview witnesses thoroughly
• DO thoroughly document each step of the investigation
• DON’T assume a person is guilty just because he or she has been accused
• DON’T unnecessarily delay the investigation
• DON’T put a speedy investigation ahead of a fair one
• DON’T interview witnesses in the presence of other witnesses
• DON’T deviate from company investigation policy and procedures without justification

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