Best Practices for Sexual Harassment Investigations

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Sexual harassment in the United States has had an insidious role in the workplace. Sexual harassment can impose liability on employers on the basis of federal laws or state laws. Employers are required to promptly investigate claims of sexual harassment. They may also need to take immediate corrective action to be sure to stop the harassing conduct.

Responding in a prompt manner can help the employer gather information and evidence quickly. Additionally, it can potentially protect an employer from any future claims of liability. Learning about the first stages of sexual harassment can help an employer prevent it from becoming an even larger problem or lawsuit. Some best practices to protect the employer’s interests include:

Ensure Confidentiality

The employer should attempt to protect the privacy of the party who makes the report regarding sexual harassment. This can be difficult because at the same time, the employer will need to implement a prompt investigation. However, if the claim is based on information that is not personally identifiable, such as making comments that were overheard by a worker who was offended by them, this may be possible. In other situations, such as where a worker propositioned another worker in a sexual nature, it may not be possible to fully investigate these accusations without identifying the identity of the worker. The employer may also want to indicate that information contained in interviews or other documents will remain confidential to the extent possible. However, the employer may not be able to guarantee complete confidentiality.

Prevent Retaliation

It is also important for employers to take steps to prevent retaliation. For example, they may prohibit managers from terminating employees who have reported an incident of sexual harassment. Although the alleged victim and the accuser may need to be separated after a report of this nature is established, it is important to avoid taking any action against the victim that may seem retaliatory in nature. The victim should not be forced to involuntarily shift departments or schedules.

Select an Investigator

It is important that there are clear guidelines regarding who will complete the investigation. It is often a best practice to have an independent and objective investigator to look into claims of sexual harassment. The investigator should be able to investigate the claim without bias and should not be in the employee’s chain of command. Independent investigators do not have a stake in the outcome or a personal relationship with the employees that would potentially influence him or her.
Potential options for investigators include staff from human resources, internal security, legal counsel or third-party investigators.

Establish Procedures for the Investigation

Before any investigation is launched, there should be clear procedures put in place regarding these investigations. These procedures may include outlining the issue, developing a witness list, creating a list of information and evidence to be evaluated and constructing interview questions for alleged victims, accused and other parties. There should also be a procedure regarding how documents will be retained and how findings are to be delivered to the parties.

Conduct Interviews

The interviews are one of the most important steps involved in a sexual harassment investigation. The investigator should inform the parties why an investigation is needed and explain the process of investigation. The investigator should never try to lead the person being interviewed in a particular direction and should remain objective throughout the process. During the investigation, the investigator should take comprehensive notes and look for any inconsistencies. These interviews may reveal other sources of information or witnesses who should also be interviewed.

Deliver a Decision

After the investigation is completed pursuant to the established procedures, the investigator can deliver a decision to stakeholders. He or she should not make any conclusions until the investigation is actually complete. The interviewer should review the interviews with the parties and witnesses. Additionally, he or she should review all other evidence in the case. At the end of this review, he or she should provide the employer with information about whether the complaint was merited and offer a formal recommendation as to how the employer should respond to the reported conduct. The employer then notifies the parties of the findings.

Prepare a Written Report

The investigator should prepare a comprehensive report after concluding the investigation. This report should detail the parties involved, the initial complaint that was made, the date when the complaint was made and other relevant actions were taken in the case, the relevant employment policies that were affected, the parties involved in the investigation, the key findings, the final decision and employment actions that were taken. This report can provide an important piece of evidence in case the employer is later sued or investigated by an outside agency.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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