Question: An employee of ours recently accused a member of our management team of sexual harassment. We know we are obligated to investigate. Can you provide any guidance? Answer: Thanks in no small part to some notable American leaders (read, United States Supreme Court Justice Clarence Thomas and past United States President William Jefferson Clinton), sexual harassment is a household term. In corporate America, executives are keenly aware that sexual harassment complaints cannot be taken lightly. Most are even aware that the law requires companies to promptly investigate complaints. However, many executives and managers are still less than clear on exactly how to go about satisfying this duty. Although your question speaks to sexual harassment complaints and investigations, the following tools are useful in investigating any complaints of alleged wrongdoing in the workplace. The California Supreme Court has held that employers must conduct a “timely” and “adequate investigation of all alleged workplace sexual harassment complaints. Timely typically means commencing the investigative process as soon as practical. I suggest that companies commence their investigation within 72 hours after first notice. The first threshold issue you confront is who should conduct the investigation. Most popular options include in-house HR personnel, outside counsel, or a third party investigator. The choice depends largely on a number of factors such as the skill, experience, and training of in-house personnel; the nature and extent of the alleged wrongful conduct; the nexus between the accused and the in-house personnel; and budget, to name a few. If you choose to conduct an internal investigation, I encourage you to consider the following approach. However, remember the investigative process is dynamic, and the investigator needs to be open to a certain degree of improvisation. Having said that, the following are certain tried and true do’s and don’ts to keep in mind. 1. Interviewing the alleged victim. Subject to very few exceptions, this is the first step in the process. I advise that you keep the following suggestions in mind: – Choose an inconspicuous time and place to conduct a confidential interview. – It is best if the complainant is interviewed alone; however, if he/she demands to have a friend or counsel present, it is better to grant the request (even though there is no legal right to counsel) and interview a more comfortable complainant then to take a hard stance, perhaps further isolating the complainant. – Try and put complainant at ease; – It is critical to seize this opportunity to gather all of the critical facts. Ensure you get answers to the basics of any investigation such as: What happened? Are we talking about one or multiple incidents? If multiple, for each, ask When? Where? With who? Any witnesses? Any documentary evidence (e.g., e-mail, personal note, pictures)? It is generally better practice to start off getting a general description of events, than to circle back and drill for more detail. Remember, the devil’s in the details. Blanket accusations alone, absent specifics, are of little investigative value. It is the interviewer’s job to always ask Could you please provide me an example? Exactly what did he/she do to make you feel uncomfortable? This first interview is often the best opportunity to get information. Be prepared and take copious notes. – Memorialize your interview. Many experts suggest that the company ask the complainant to sign a document capturing the details shared in the interview process. 2. Make a list of others involved and outline the sequence of interviews. If there are others besides the complainant and the accused who are critical to the events, I generally suggest interviewing the third parties before the accused, assuming these can be arranged without delay. In third party interviews, be mindful of the following: Make the witness comfortable. Inform him/her up front that he/she is not the target of the investigation. – Do not offer specifics. It is better practice to generally inform the witness of the purpose for the meeting and then ask open-ended broad questions and await responses. For example, As you perhaps already know, Jane has complained about some of Joe’s recent behavior (or comments as the case may be). What can you tell me about it? – If the witness ultimately claims no knowledge, then ask if they know anyone else with whom it may be helpful for you to speak. If the witness is familiar with the events/circumstances, probe for more information by asking open-ended questions such as: “What can you tell me about that? How did you learn about that? Can you provide me with some examples so I can better understand?” The objective is to get them to start talking and then just let them go. 3. Interview the accused. This is a critical step. It also calls for a different approach than interviewing third party witnesses. We suggest you consider the following: – Although you may choose to start off broadly (e.g., perhaps you’re aware that Jane has complained about your behavior or similar comments relating to the incident. Do you know what I’m referring to? What can you tell me?), it is critical that you provide the accused with an opportunity to respond to all the relevant details of the complaint. – Inform the accuser it is the company’s legal obligation to investigate any allegations of wrongdoing. Giving the accused an opportunity to hear the allegations and respond accordingly, is an essential part of that process. 4. If your investigation has resulted in conflicting information, be sure to circle back with the complainant or critical witnesses, as necessary, and provide them an opportunity to clarify, correct, or challenge the conflicting information provided by other witnesses. This column contains general information and under no circumstances constitutes legal advice. This information is not provided in the context of an attorney-client relationship and nothing herein creates an attorney-client relationship. Readers should not act upon this general information without first seeking professional advice Ira Rosenblatt is a business and corporate lawyer and a co-founder and Director of Stone, Rosenblatt & Cha, a business law firm in Warner Center. Rosenblatt has earned Martindale-Hubbell’s highest rating (“AV”) for legal ability and ethics and is listed in Martindale-Hubbell’s National Bar Register of Preeminent Lawyers. He can be reached at [email protected].
