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6 common mistakes made during investigations, training

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in Discrimination and Harassment,Employment Law,Human Resources

Issue: One error during sexual harassment training or investigations can be legally devastating.

Benefit: Being aware of the possible pitfalls (and making supervisors aware) can help you avoid them.

Action: See if you're making any of these six mistakes. If you are, change your policies now.

Are your anti-harassment efforts legally bulletproof, or are they full of holes? Probably somewhere in between, if you're like most employers. Here are six holes that need patching in many employers' training and investigation practices:

Training mistakes

1. Weighing down training with too much legalese. Don't dwell on recent court decisions and "affirmative defenses." Use basic terms to explain what's acceptable behavior, what's not and how to report harassment.

"Training should be done in plain English and in a manner that invites questions," says employment lawyer Maria Danaher, of the Pittsburgh firm Dickie, McCamey & Chilcote. "You don't want training that is just one person talking to an audience. You want interaction."

2. Failing to mention retaliation. Remind employees that it's illegal to retaliate against employees who file harassment complaints or act as a witness. In fact, most retaliation complaints come from cases in which the court says harassment did not occur. (That's because people are more likely to "get even" with employees who falsely accuse them.)

3. Identifying only one complaint taker. Your policy and training should name at least two people who will take complaints. Try to include at least one female complaint-taker; some women may not feel comfortable voicing a harassment complaint to a male.

Investigation mistakes

4. Choosing the wrong interview location. Sit down with each person separately in a private and convenient place. Avoid meeting across your desk, which is a "confrontational" position.

5. Keeping incomplete documentation. Take notes with the thought that someone else will need to read (and understand) your notes two years from now. Write complete thoughts, avoiding personalized shorthand. Sign and date all notes. Write objective statements, and use direct quotes, avoiding judgmental language.

6. Overlooking the follow-up phase. After the investigation, meet with complainants to notify them of the investigation's results (discipline, termination, etc.). Ask them to tell you if they suffer any further harassment or retaliation.

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