Investigating workplace harassment: 10 steps to success
Issue: Responding to employee harassment complaints is a high-stakes venture.
Risk: A botched investigation can damage employee morale and spark a lawsuit.
Action: Make sure you (or any manager who investigates harassment) follow these 10 commandments.
When complaints of workplace harassment arise, as they inevitably do, HR directors and managers must respond quickly and appropriately. Here’s a 10-step checklist to follow:
1. Investigate (almost) every complaint. If the allegations are quite minor (an innocuous and isolated joke) or the accused employee admits the behavior, you can skip the investigation and take immediate disciplinary action.
2. Chose the right investigator. The investigator should be neutral and experienced. Don’t investigate yourself unless you can be truly unbiased and are confident in your abilities. If not, find someone with the appropriate background, even if it means hiring an outsider. Note: Don’t choose an investigator who has less authority than the accused harasser.
3. Act right away. Respond within a week of the allegations, and aim to complete the investigation within two weeks of receiving the complaint (a month if you use an outside investigator). But don’t cut the investigation short if you need more time. You may need to put the accused person on paid administrative leave during the investigation.
4. Question all witnesses. Interview the employee who’s making the complaint, then the accused. If he/she admits the behavior, you may have to go no further. In most cases, you’ll need to interview witnesses. Also, gather any pertinent documents.
5. Document everything. Start your documentation right away and document facts, not conclusions or opinions. Assume that your notes will be scrutinized. Make sure the complainant, respondent and witnesses sign statements (or the investigator’s notes) so it’s clear that you’ve obtained their versions of the story.
6. Come to a conclusion that the evidence supports. Don’t avoid this step by concluding that you can’t tell who is telling the truth. It’s up to you as the investigator to decide which version is most believable.
Key point: Employees claiming harassment don’t need to prove the harassment occurred “beyond a reasonable doubt.” They must provide only a “preponderance of the evidence,” which means that it’s more likely than not that the harassment occurred.
7. Prepare a written report. Explain the complaint and your conclusions. This will let you explain why you concluded which party was more believable.
8. Communicate with both sides. Throughout the investigation, stay in touch with both parties. When it’s completed, explain the findings.
9. Administer appropriate discipline. If you conclude that company rules were broken, take disciplinary action that’s appropriate to the offense’s seriousness and consistent with discipline administered for similar infractions.
10. Follow up to look for retaliation. People who complain about harassment often find that their work environments become frosty. Make sure that doesn’t happen. Monitor the workplace and check in with both parties.
Author: Amy Oppenheimer, J.D., a neutral investigator of workplace harassment and co-author of Investigating Workplace Harassment: How to Be Fair, Thorough and Legal (SHRM).