We’ve already discussed what can constitute workplace harassment and why every employer needs an anti-harassment policy and process for handling complaints.
But what is the right way to conduct a harassment investigation?
According to Embroker, from 2019 to 2020, there was a 115% increase in defense costs for insurance claims related to harassment. It goes without saying that workplace investigations are a complicated and delicate matter that employers must handle quickly and carefully to protect their business and employees!
So what should you do first? And who should be involved in the process? Below, we’re covering the essentials for a fair and effective workplace investigation, from separating those involved to reporting findings and making a final decision.
1. Separate Involved Employees
The first step employers should take upon receiving a harassment complaint is immediately separating the individuals involved. Inform them that separation is not a punishment but instead to maintain their safety and prevent further issues.
This may call for a temporary transfer, or nondisciplinary paid leave of absence if the allegations are serious enough. Regardless of the claim, HR should notify all parties that there will be an investigation and make it clear that the company will not tolerate retaliation.
2. Choose the Right Investigator
The investigator’s role is a crucial and complicated one. As your business grows, it is wise to designate at least two specific team members to lead harassment investigations. Workplace investigators should be:
- Individuals with whom employees are comfortable reporting misconduct.
- Trained in mediation and investigations.
- Professionals with significant integrity.
- Respected and supported by both employees and upper management.
- In a position with sufficient time to conduct a thorough and speedy investigation.
- Individuals of both genders to ensure the complainant (victim) and witnesses are comfortable reporting details.
Avoid selecting immediate supervisors as the investigators, as they might be too close to the people involved. These supervisors are also not usually trained to conduct harassment investigations.
Of course, handling workplace investigations in-house can get messy. Employers should consider partnering with outside investigators when:
- The individual(s) designated to perform workplace investigations are implicated in the allegations.
- The complainant is not comfortable with the designated investigator.
- They want to avoid the suspicion that their investigation is biased.
- A high-level executive is the alleged harasser.
- The alleged harasser is considered violent and/or retaliatory (an outside investigator can retain more privacy and safety from an aggressive employee).
3. Prepare for a Thorough Harassment Investigation
Before starting the harassment investigation, the investigator must prepare carefully by:
- Gathering relevant documentation for review (e.g., handbook, policies, complaint notes, prior complaints/investigations involving the employees, evidence, etc.).
- Identifying the interviewees, including the complainant, accused, witnesses, and others who have allegedly been subject to similar activity by the accused.
- Identifying necessary supplementary interviews, such as supervisors of employees involved, authors of pertinent reports/documentation, and coworkers of those involved.
- Deciding the interview order (typically, investigators start with the complainant).
- Determining the interview format.
4. Conduct the Interviews
After gathering all the necessary materials and developing a plan for the investigation, it’s time to begin the interviews. General best practices for workplace investigation interviews include:
- Creating a list of open-ended questions for each individual
- Maintaining a professional, neutral attitude
- Avoiding leading questions or comments
- Taking detailed notes, as close to verbatim as possible
- Ending each interview by thanking the interviewees and letting them know the employer will maintain their privacy as much as possible and enforce their anti-harassment policy
Complainant Interview
Typically, investigations start by interviewing the individual who reported the harassment. Not surprisingly, complainants are often nervous about causing trouble. Interviewers should inform the complainant that they will do everything possible to protect their conversations and privacy but ensure that the complainant understands that the alleged harasser and managers/leaders may need to be informed.
The complainant may express that they do not want any action taken. The HR department or manager who receives the complaint should explain that the employer is obligated to investigate alleged misconduct and will act according to the company’s policies, integrity, and federal and state laws.
During the interview, investigators should focus on the basic facts and incident details by finding out:
- When and where it occurred
- How often similar interactions have taken place
- With whom the incident occurred
- How the incident made the employee feel
- Names of any witnesses
- Evidence like texts, emails, or photos
Interviewers should encourage the complainant to report retaliatory behavior or further instances of harassment and assure them that misconduct and retaliation will not be tolerated. They should also let them know when to expect the investigation conclusion and results. Finally, the interviewer should review their notes with the complainant to confirm their account of the allegations and provide a record of the interview if they request it.
Accused Harasser Interview
Interviewers should begin the conversation with the alleged harasser by sharing the essential facts of the complaint. It’s best practice to inform them that no conclusions have yet been reached, and there will be a fair, thorough investigation. It is not necessary to disclose the source of the reported harassment.
To guarantee a fair and effective interview of the accused wrongdoer, interviewers should:
- Ask open-ended questions
- Allow them to share their perspective and respond to each allegation
- Allow them to provide witnesses in their favor
- Clarify any working and personal relationship between the accused harasser and complainant
- Establish the frequency and nature of the interactions between the accused wrongdoer and the alleged victim
- Inform them they are not to interfere with the investigation or take retaliation against anyone else involved
Witness Interviews
Regarding witness interviews, workplace investigators should start by explaining that they are investigating a workplace harassment report. They should remind witnesses of their critical role in helping determine the truth and that there will be no retaliation for their cooperation. This may take some coaxing, as witnesses are often hesitant to participate in investigations for fear of implicating a friend or getting mixed up in the issue.
Regardless of what side each witness is speaking for, interviewers must maintain an impartial attitude and avoid making conclusions until they’ve completed all interviews and gathered all evidence.
5. Wrap Up the Investigation
To conclude the workplace harassment investigation, the interviewer should thoroughly review all notes, materials, and evidence. Then, they’ll need to determine if company policies have been violated or laws have been broken.
After the review and conclusion, they should write an investigative report summarizing their findings and sticking to the facts. The information should include the investigator’s assessment and reasoning for the credibility of each interviewee. Once complete, they should provide the investigative report to relevant leaders (i.e., executives, management, HR, and company attorneys).
If investigators and management determine workplace harassment has occurred (i.e., policies or laws have been violated), HR and leadership will need to determine disciplinary actions. Next, they will need to inform the alleged harasser respectfully to ensure they are not humiliated in front of colleagues or family. Discuss any relevant corrective actions with them and reiterate the company’s anti-harassment and retaliation policies.
Finally, inform the complainant of the investigation findings and whether or not there was cause for discipline. If so, let them know the appropriate action has been taken, and no further issues will arise. Only share necessary details of corrective action with the complainant—protect the accused harasser’s dignity by being discrete. Remind them to come to you if future problems occur, from new forms of harassment to retaliation.
If you need a neutral third party to investigate harassment claims and help maintain a safe, healthy workplace culture, contact us at 603-818-4131 or info@bluelionllc.com! Our HR experts will act as unbiased investigators and guide you through these challenging issues.
The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.
