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Sexual Harassment Investigations
By Carl ToersBijns, former deputy warden, ASPC Eyman, Florence AZ
Published: 01/02/2017

Eyes open Whether we like it or not, sexual harassment in the workplace remains to be a serious problem. What complicates this matter even more than the offensive behaviors itself is the fact that most sexual harassment cases are often mishandled from the beginning resulting in a biased or compromised process that by itself is seriously flawed and therefore, unpresentable for the cases involved.

Some EEOC documents classified harassment as either “quid pro quo” or hostile environment. However, it is now more useful to distinguish between harassment that results in a tangible employment action and harassment that creates a hostile work environment, since that dichotomy determines whether the employer can raise the affirmative defense to vicarious liability. Once we admit that this type of cases requires a better approach and process to legitimize the findings, we are on our way to resolving some of these issues with improved results and with more depth to show its validity.

Remember, perceptions rule these days and the better the perception, the fairer and open the responses, and acceptance of the results. Without a doubt, such sensitive cases are tricky and risky defined under the law. Whatever course the investigator or participants take there is much at stake to resolve the issues gleaned or found by the informal or formal inquiry established. There are many stakeholders in such a case. The main or primary stakeholder is the person offended or violated. Then under the terms of the liabilities of such cases, the employers become liable and stand to lose either credibility or pay fines and restore grievances filed in such cases. If an employee hired as a supervisor has the authority to manage others, the employer is responsible for any or all decisions made by that supervisor including discriminatory decisions.

From the beginning, employers must show compliance with the law. Those who are involved must show fair and prompt action to protect the aggrieved employee(s). Besides being fair and prompt they must be thorough enough to draw a conclusive decision of finding with the law. Most importantly, the process must be a clean process that does not compromise or damage the dignity, respect, and reputation of the person complainant. There's so much at stake for the employees involved and the company, especially when a supervisor is implicated.

Because of its serious implications, the cases handled should always be per the federal law with the intent to protect those who are alleged to be violated. This process of reviewing facts is often complicated when there is a conflict between employee and supervisor, especially is it is the supervisor who is being accused of sexual harassment. An investigator cannot be biased in his or her findings and this thin line between the employer, employee and supervisor must be maintained under all circumstances.

Allegations of sexual harassment must be assessed, investigated and resolved as soon as possible to ensure the behavior doesn’t continue once the notification r complaint has been received. While preventing, sexual harassment is the goal, immediate intervention followed by a swift and fair resolution is the next best way to stop the behavior. Even companies with zero tolerance policies have been found guilty and a fair and solid investigation or review conducted sends a message to the rest of the company that harassment isn’t tolerated.

In most cases, the complainant in a sexual harassment investigation may be in distress, embarrassed or angry and it’s important to treat these cases with discretion and tact. There is no need to publicize any complaints received and the better the confidentiality, the better the investigative process. Many victims of sexual harassment prefer that the incident and ensuing investigation be kept confidential but under some workplace conditions, this poses some difficulties for investigators and the company.

Report any complaints of sexual harassment immediately to the human resources department and/or to the department or person responsible for enforcing the company’s anti-harassment policies. Record and log each case received and initiated an investigation into sexual harassment allegations as quickly as possible. Ensure the complainant knows that the company is taking his or her complaint seriously and reflect this in your manner and professional conduct. Under most circumstances, it is best to assign two investigators to sexual harassment investigation interviews – one to conduct the interview and one to take notes and provide support. Ensure at least one of the investigators is the same gender as the complainant.

Ensure an unbiased investigation by assigning investigators who don’t have a relationship with the complaining employee, the subject of the allegation or any witnesses. Relationships can and will compromise credibility issues and or final findings as there are appearances of bias and favoritism involved.

Conduct all investigation interviews in a private place, away from other employees and management. Keep all details of the case confidential and be discreet about the allegations and the identities of the complainant and the subject of the investigation.

Explain the company’s anti-retaliation policy to every person you speak to in the investigation and encourage them to report any retaliatory behavior they experience. To avoid further conflicts or grievances, it is strongly suggested that the employer finds the means to separate the parties during the investigation, but be mindful of the danger of this looking like retaliation and keep their work schedules as close as their original assignments as possible.

Always remember the mission statement on all EEOC unlawful issues – take this matter under the consideration that a law has possibly been violated and that the matter may end up in a courtroom. Gather all the relevant documents you need to begin the interview process. In this packet, you must include a copy of the employer’s code of conduct and related policy documents e.g. EEOC policies and procedures. Gather all the personnel files of all personnel involved or identified and identify their roles as complainant, accused, witness etc.

A copy of the allegation must be in the packet. All supporting documents to the matter and identify all parties and roles to the complaint. A list of all persons named and identified to the complaint and contact the pursuer and discuss the subject of the allegation, identify all witnesses and their relationship or position to the complainant and set up interviews. Remember to coordinate this closely with the second investigator so that both persons are included in all the elements of this review as it is set up and established by the original complaint.

The second investigator should take notes during the interviews, or record the interviews for later transcription. Don’t promise confidentiality to any interviewees, but explain that you will do your best to keep the details of the investigation confidential. It is always best to record these interviews and transpose their statements to a written transcript.

While interviewing all involved, make sure you take written statements from interviewees when appropriate. Such statements can be valuable evidence that supports or refutes the complainant’s story. One of the most important things to remember in all cases is the ability for the reviewers to make an accurate assessment of the credibility of each interviewee and document your assessment in your notes.

Time is important thus you must interview the complainant as soon as possible after the allegation. This reinforces the importance of the issue and reassures him or her that the company is taking the allegation seriously.

Acknowledge the sensitivity of the allegation and reassure the complainant that the company is serious about getting to the truth and preventing more occurrences. Find out how the alleged harassment has affected the complainant as well as the details of the actual event. In most cases, the investigator or reviewer will ask the complainant what outcome he or she would like to see because of this claim or complaint.

Interview the subject’s supervisor to find out about any discipline problems, behavior patterns or other clues and request any documentation that is relevant to the investigation. Refer to the personnel files to reveal any prior allegations or accusations of sexual harassment in the past. An individual qualifies as an employee’s “supervisor” if the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or the individual has authority to direct the employee’s daily work activities.

Interview any witnesses to the sexual harassment. Cover the “who, what, where, when and how” questions first, then ask about any other information they can provide that might help you find out what happened. For example, you could ask whether they saw the complainant immediately after the alleged incident and what was said. Try to get the witness to provide the identities of the accused and complainant before you disclose them.

During these interview of the witnesses, ask for additional names of witness and any other specific details of what witnesses saw or heard themselves. Don’t hesitate to expand the list of witness past or present employees as you ask witnesses whether they can think of anyone else who may be able to share information about the incident.

Interview the subject of the harassment allegation last. Establish the relationship between the subject of the allegation and the complainant. For example, is the accused the complainant’s team member or lead person or main supervisor? Is or was there a romantic relationship between the two?

Question the subject on how long the two parties have known one another and whether they socialize outside of work. Be sensitive to the stressful nature of the situation and the repercussions of the investigation for the subject. As your interview is conducted, have the second interviewer or investigator assess the subject’s body language, eye contact, hands and speech to assess the reaction of the subject to the complaint. Is he or she surprised, angry, resigned?

If the subject denies the allegation, ask if he or she can think of a reason that the complainant would make the complaint. Determine any motives or reasons for such a complaint to be filed and share this with your investigative partner in confidence to write your final findings.

Corrections.com author, Carl ToersBijns, (retired), has worked in corrections for over 25 yrs He held positions of a Correctional Officer I, II, III [Captain] Chief of Security Mental Health Treatment Center – Program Director – Associate Warden - Deputy Warden of Administration & Operations. Carl’s prison philosophy is all about the safety of the public, staff and inmates, "I believe my strongest quality is that I create strategies that are practical, functional and cost effective."

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