In Focus: Investigating Employee Complaints
January 13, 2002 Advisory
Our page one article discusses the Ellerth-Faragher affirmative defense to claims of illegal harassment and the importance of an effective anti-harassment policy. An integral part of any such policy is the ability to promptly and effectively respond to employee complaints. Following is a brief summary of how to conduct an investigation of a harassment complaint.
1. What is the first step when conducting an investigation?
Perhaps the most important decision to make is who will conduct the investigation. The investigator, who is likely to be a key witness should a case subsequently be brought, should be unbiased, an effective interviewer, and have experience conducting similar investigations. An employer may choose to have someone from outside the organization conduct the investigation or someone in-house. Employers should keep in mind, however, that an outside attorney who conducts an investigation will become a witness and would not, therefore, be able to represent the employer should the matter later be brought to trial. If an employer chooses to use an in-house investigator, that person should be experienced and well-trained.
2. Who should be interviewed during an investigation?
Clearly the person who brings the complaint should be thoroughly interviewed. It is important that the interviewer instill confidence in his/her ability to be impartial and to perform a thorough investigation. The complainant should understand that his/her allegations are being taken very seriously, and that the goal of the organization is to see that the matter is resolved in a fair and appropriate manner.
After speaking with the complainant, a list of other individuals to be interviewed should be compiled. The person accused of the inappropriate behavior must be interviewed and given a chance to tell his/her side of the story. In addition, anyone who may have witnessed the complained of behavior or have any other relevant knowledge should be interviewed.
3. What records should be kept?
It is important to keep proper documentation as it can help in a defense of later claims. Notes should be strictly factual and should be legible, dated and identified with the preparer's name and title. If written witness statements are appropriate, they should be clear, complete and the signer should be entirely comfortable that the information provided within it is accurate. All documentation should be retained in a confidential file.
4. What should be done at the conclusion of an investigation?
After the investigation is complete, a decision needs to be reached as to the appropriate course of action. If the complained of conduct has occurred, disciplinary measures designed to promptly stop the offending behavior should be taken. The complainant should be advised that the investigation has been completed. He/she should also be told that if the complained of behavior continues, it needs to be brought to the investigator's attention so that further action may be taken.