Workplace Investigations and Action Against Sexual Harassment
Taking immediate and successful corrective action to resolve a sexual harassment charge is often an employer’s best defense. Therefore, employers should ensure that those conducting their sexual harassment investigations are performing comprehensive, accurate, and confidential investigations.
Sexual harassment is an ongoing source of liability for Connecticut employers. With significant damage awards an ever-present threat, employers are now taking a variety of preventive measures to ensure that unwanted sexual misconduct is not occurring in their workplace. Preventive strategies include not only training employees in accordance with Connecticut’s posting and training law, but also investigating the availability of insurance coverage to mitigate the financial risk associated with harassment claims. Another critical component of an effective preventive strategy is to educate those employees responsible for conducting sexual harassment investigations on how to conduct a comprehensive and thorough workplace investigation. To the extent that the results of an investigation are the cornerstone of an employer’s defense to a sexual harassment claim, it is critically important that such matters be handled by trained and discreet professionals. Basic principles of conducting a sexual harassment investigation are outlined below. Next month’s Connecticut Employment Law Letter will provide additional tips for conducting investigationinterviews.
General Principles in Conducting an Investigation
Role of the Investigator. The mission of the investigator is simple to articulate but often far more difficult to implement. The investigator is a fact finder. The fact finder’s goals are twofold: (1) to discover the truth and (2) to prevent any further harassment. These goals must be achieved while protecting the interests of both the complainant and the alleged perpetrator.
The investigator is the employer’s critical source of information about the validity of the harassment claims, and it is thus imperative that he or she fully understand the rights and responsibilities of all involved in sexual harassment charges.
The External Investigator. In light of the critical importance of impartiality and promptness in conducting a sexual harassment investigation, certain circumstances may lend themselves to engaging an external third party to conduct a sexual harassment investigation. This outside party may be lawyer or a management consultant, but, in any event, should be an individual with significant knowledge of sexual harassmentlaw and demonstrated skills in handling such matters.
Circumstances that may necessitate an outside investigator include the following:
*The internal investigator cannot conduct an impartial investigation because of the parties or circumstances involved. He or she may have a predisposition toward the result or be on “too familiar” terms with an individual critically involved in the claim.
*If a high-level executive is alleged to be the perpetrator, and the consequences of investigating the complaint are potentially dramatic, an external investigator may be warranted. In these circumstances, an external investigator will be less likely to fear reprisal and may command more authority than the accused’s subordinate.
*A particularly complex or involved allegation affecting many individuals may require devotion of significant resources, time, and energy to the investigation and therefore warrant an external investigator. In such circumstances, a prompt and thorough investigation may be more effectively handled by an individual solely dedicated to that task.
Each sexual harassment complaint should be judged by on a case-by-case basis to determine if an external investigator is necessary to provide a fair and impartial investigation. Employers should also be aware that using employment counsel to conduct the factual investigation may later jeopardize that counsel’s ability to litigate the merits of a sexual harassment charge.
Prompt Investigation. The investigation of a sexual harassment claim should begin as soon as possible after the complaint arises. Promptness not only enhances the credibility of your company’s commitment to preventing sexual harassment, but also provides the employer with the best weapon to effectively stop any inappropriate conduct.
Thoroughness. A defensible decision to discipline an employee in relation to sexual harassmentcharges is dependent upon an accurate and thorough investigation. While there are no hard-and-fast rules on how to acquire the facts, it is clear that the investigator must obtain the relevant information in a detailed and precise manner. Context is often critical in assessing the obligations and responsibilities of the parties involved; thus, the investigator must be committed to obtaining and understanding the facts of each and every charge. The investigator should be sensitive to inconsistencies between witness statements and ask appropriate and sensitive questions to reconcile inconsistencies and clarify contradictions.
Unbiased. A company’s interest in conducting a sexual harassment investigation is to discover the truth, not to cover up indefensible conduct. A jury must be convinced that the company is seriously committed to its sexual harassment policy. If an investigator merely pays lip service to the policy, the investigation will be of little value in eradicating harassment or in providing a viable defense in later litigation.
It is therefore critical for an investigator not to assume that any version of the facts is true, until he or she has spoken with the relevant witnesses and examined critical documents. However, when taking steps to eradicate inappropriate conduct, it may be necessary in certain circumstances to take corrective or preventive action even when an investigation has yet to be fully concluded.
If possible, an employer should use two individuals to conduct critical interviews, both to provide additional witnesses and to ensure that each witness is comfortable communicating his or her knowledge of the events at issue. Investigators should keep in mind the accused’s right to notice and an opportunity to be heard regarding the events at issue.
Consistency. It is important to follow investigatory procedures for each claim that is filed. While the scope of investigation will vary depending on the facts alleged, every complaint merits an investigation. Consistency is equally important when evaluating the alleged conduct and issuing discipline.
Use of Counsel. While it is not generally necessary to involve your employment counsel in investigatory interviews, it is often wise to consult with counsel at the initiation of the complaint and as the investigation evolves, particularly when the evidence is evaluated and discipline is contemplated. It is often helpful to have an attorney for assistance in evaluating the facts and to ensure that all necessary steps have been taken. Communication with counsel should be closely guarded to ensure that the attorney/client privilege is maintained, particularly if opinion letters of a sensitive nature are issued.
Confidentiality. While an employer cannot and should not promise to the alleged victim of sexual harassment that his or her allegations will remain confidential, it is critical that information pertaining to the events and circumstances at issue be communicated solely on a need-to-know basis within the company. This is a prerequisite not only to protecting the interests of all parties, but also to minimizing potential lawsuits, particularly for defamation. Management, the complainant, the accused, and all witnesses should be instructed not to communicate about the charges at issue, other than in the course of the official investigation.
If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.
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Source: Anne Noble Walker, Practical Considerations for Sexual Harassment Investigations in the Workplace, Connecticut Employment Law Letter (Nov. 1995)
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