Investigating Harassment/Hostile Environment Complaints
There are four basic steps to handling a sexual harassment complaint:
- taking the complaint;
- interviewing the alleged offender;
- investigating the complaint, including interviewing witnesses; and
- taking appropriate action.
Maintain all documentation in separate, confidential personnel files. Ensure that all interviews are conducted in private areas.
1. Taking the Complaint
- Listen but express no opinion and make no commitment.
- Consider having a witness of the same gender as the complainant in the room with you to take notes of the conversation. This will help make the employee more comfortable in discussing intimate or sexual matters.
- Ask open-ended questions, acknowledge the complainant’s statements, and paraphrase them to ensure understanding.
- Get specific facts of the incident(s), including: what the behavior was, where it occurred, who was involved, when it happened (date and time), whether there were witnesses (and who), whether it has occurred before, and whether the complaining employee has told anyone else.
- Assess “welcomeness.” Did the complainant say anything to the alleged harasser to indicate that the behavior was unwelcome, uninvited, or offensive? What was the complainant’s physical response (i.e., did he/she turn away, laugh, smile or say “Stop”)?
- If the complaining employee said or indicated that the behavior was unwelcome, inquire into the alleged harasser’s response
- Determine whether the complainant kept notes and if so, whether you can make a copy of them.
- Ask if there is anything else that the complainant believes you should know to investigate the matter.
- Ask the complainant what action the organization should take to resolve the problem.
- Assure the complainant that the nonprofit considers the complaint a serious matter and that appropriate action will be taken as quickly and confidentially as possible.
2. Interviewing the Alleged Harasser
- The accused harasser has a right to hear and respond to the allegations in detail.
- Conduct the interview in the same straight-forward, unbiased manner as your interview with the complainant.
- Consider having a witness of the same gender as the alleged harasser in the room with you to take notes of the conversation.
- Be serious and to the point.
- Focus on the alleged harasser’s actual behavior. Ask the accused to respond to each allegation separately.
- Find out whether the alleged harasser and the complainant socialize together (alone or in a group). If so, obtain details of the situations in which they have socialized.
- If the accused harasser admits the behavior, state that the behavior must stop immediately, and consider what will be appropriate disciplinary action.
- If the accused denies the behavior, explain that you will be investigating further before making any determination. Caution the alleged harasser not to speak with co-workers at this time regarding the allegation.
- Advise the alleged harasser that the complaint and investigation will be kept as confidential as possible.
- Caution the alleged harasser strongly that you will not tolerate retaliation against the complainant or witnesses, if any.
3. Developing Information
- Monitor the workplace to ensure that the harassment (if any) stops and that no retaliation occurs.
- Try to speak with any witnesses who may have relevant information and the parties’ supervisor(s) as soon as possible (within the same day, if possible). Be as discreet as possible.
- If there are no witnesses, consider speaking with one or two trusted, long-term employees who may be able to provide insight into the behavior of both parties.
- Inform any witnesses that the investigation is confidential and that discussing the matter may result in disciplinary action.
- Try to ask open-ended questions to determine what the witness knows, rather than obtaining yes/no confirmation of events you recite.
- Interview former employees, friends, and relatives of both parties, if appropriate.
- Review and consider the personnel and supervisory files of both parties.
4. Taking Appropriate Action
If you conclude that harassment has occurred, you are legally obligated to take appropriate disciplinary action. Appropriate discipline may range from verbal counseling to immediate termination, depending on the severity of the circumstances, the parties’ past record, and their position within the organization.
The public entity should:
- ensure that whatever action taken is equitable, consistent with the entity’s past practice, and appropriate under the law.
- be prepared to explain fully the results of your investigation and the action that will be taken.
- always give the results to the complainant with a reminder that there will be no retaliation against him/her for bringing the complaint.
- instruct the complainant to report any recurring or continuing harassment immediately.
- monitor the workplace to ensure that the harassment has stopped and that no retaliation is occurring. Check with the complainant regarding these issues for the next few weeks.
- document carefully every step of the investigation and any subsequent action.
What constitutes “appropriate corrective action” for non-employee harassment varies considerably, depending on the circumstances, including the amount of control that the entity’s management/employee has over the non-employee and the legal relationship between the entity and the non-employee. The entity needs to do whatever is reasonable under the circumstances to try to stop the harassment from occurring.
Where the alleged harasser is a specific known individual (i.e., contractor or vendor), communicate directly with the individual to advise him/her of your concern and request that the harassment stop. If the harassment continues, you may need to consider terminating your relationship with the non-employee.
5. Taking Action Even if the Investigation Is Inconclusive
Even if the investigation provides believable allegations sincerely brought, but no witnesses, and the alleged harasser credibly denies all allegations, the public entity should still take proactive measures to ensure that both employees understand their responsibilities and that the public entity takes such matters seriously.
Consider the following steps:
- Write a memorandum to each employee’s file documenting the investigation. Make a record of the relevant facts, including factors that you considered that raised suspicion one way or another.
- Write separate memoranda to the complaining party and the alleged harasser, placing copies in your confidential investigation file. The memoranda should:
- state “The investigation was inconclusive, but will remain open in case other information surfaces that will assist the nonprofit in making a final determination;
- include a reminder of the entity’s No Harassment policy with another copy for their reference;
- include an expectation that no other harassment complaints against the alleged harasser will surface in the future, and an assurance that if any complaint is made, the nonprofit will take immediate appropriate action; and
- include a reminder that retaliation will not be tolerated.
Meet separately with each individual and provide the results of the investigation, the action the nonprofit will now take, and the content of the memo discussed above.
Adapted from Sexual Harassment manual, Fisher & Phillips Ltd, attorneys at law, 2001