INVESTIGATING CLAIMS OF SEXUAL HARASSMENT
INTRODUCTION
In recent years, as national attention has focused on this issue, employers have become
increasingly aware of what constitutes sexual harassment. What many managers and
human resource professionals are unaware of, however, is that a company’s response to a
claim of sexual harassment, in addition to the underlying sexual harassment itself, often
creates legal problems. For example, in one recent high-profile case, a manager’s
response to a claim of sexual harassment – that “boys will be boys” – was cited as one
factor in awarding the complainant over $250,000 in damages. In another case, the
company’s failure to thoroughly investigate the claim was deemed to have increased the
complaining party’s emotional distress. It is critical that employers not only understand the
nature of sexual harassment, but also understand how to properly investigate claims and
take appropriate action.
GENERAL GUIDELINES
IMPARTIALITY:
A human resources manager or another executive should be designated to investigate
sexual harassment complaints. The alleged harasser, and anyone else involved in the
complaint, should never conduct or supervise the investigation. Whenever possible, the
investigation should be conducted under the guidance of an in-house company attorney or
outside employment counsel, both for advice and so that the attorney-client privilege may
be asserted, if necessary.
DOCUMENTATION:
The complaining party may be asked to make the complaint in writing; however, if he or she
refuses, the complaint must still be investigated. The investigation should be well
documented, including written statements from parties and witnesses, as appropriate.
Sexual harassment complaints and other investigative materials should not be kept with
regular personnel files. A separate, confidential investigative file should be maintained.
However, if an employee receives a written reprimand or other disciplinary action as a result
of the investigation, this document should go in the employee’s personnel file.
PROMPT ACTION:
It is critical that the investigation be conducted in a timely manner, as soon as possible after
the company becomes aware of the alleged improper conduct, and certainly no more than a
few days after the complaint has been made. Remember, the company may not be liable
for sexual harassment between co-workers if the response is prompt and effective.
CONFIDENTIALITY:
Employees, including the complaining party and any witnesses, should never be promised
absolute confidentiality. Keeping such a promise could prevent you from conducting an
effective investigation. However, the investigation should be as confidential as possible.
Determine who really has a need to know and instruct all parties and witnesses that they are
not to discuss this matter with others.
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SEXUAL HARASSMENT INVESTIGATION CHECKLIST
The following checklist and interview forms are provided to help you conduct a thorough
investigation into any sexual harassment complaint.
Consider the order in which investigation interviews will be conducted.
Complainant
Alleged harasser
Co-workers and other witnesses
Second interview of the Complainant to discuss any factual questions as a result of the
investigation
Second interview with the alleged harasser to discuss any factual questions as a result of the
investigation
Interview each witness separately in an office or room where the discussion will not be overheard
by other witnesses, the alleged harasser, or any other unauthorized persons.
Two uninvolved managers should participate in the interview process. At least one of the
investigating managers should be thoroughly familiar with sexual harassment law and the
Company’s harassment policies and procedures. One manager should be designated as the
interviewer, and the other should act primarily as a witness and take notes of the discussion.
Before beginning the interview, explain the purpose of the interview by referring generally to
recent complaints about the relationship between the Complainant and the alleged harasser. Do
not necessarily discuss the issue of sexual harassment, so that you do not taint the witness’s
recollection of the events.
Emphasize that the Company takes these charges very seriously and that the Company is
investigating these charges by interviewing all potential witnesses in compliance with Company
policy.
Explain that upon completion of the investigation, the Company will attempt to determine what
occurred, and will take appropriate action based on its determination.
Other:
________________________________________________________________
________________________________________________________________
________________________________________________________________
Review Complainant’s personnel file.
Review alleged harasser’s personnel file.
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Discuss investigation results and proposed action with investigation team. This discussion should
be limited to those with a need to know the results of the investigation, such as the Complainant’s
supervisor, the alleged harasser’s supervisor, and senior Human Resources Department staff.
Consider credibility determinations. Factors include:
Memory
Perception
Veracity (truthfulness)
Corroboration of lack of corroboration, and implications of such determinations
Bias of witnesses
Consistency of accounts
Prior misconduct of lack thereof, and implications of such misconduct
Plausibility of accounts
Review any documentary evidence
Consider appropriate remedial action:
Document investigation in personnel file
Verbal warning
Was the harassment complaint procedure adequate?
Did the investigator uncover other issues which need to be addressed?
Was the investigation procedure adequate?
Other:
________________________________________________________________
________________________________________________________________
________________________________________________________________
Implement changes to harassment policies and procedures where appropriate
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FINAL DETERMINATION AND REMEDIAL ACTION
Consider and discuss the following:
Which witnesses were credible?
Was sexual harassment committed?
What would be appropriate remedial action?
Documentation in personnel file
Verbal warning
Written warning
Training
Suspension
Demotion
Termination
Reassignment or transfer
Why was the remedial action chosen?
Is there anything more the Company could do to prevent such harassment claims in the future? If
so, what?
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