During the past year’s discourse about the #MeToo movement, there has also been an increasing call to #BelievetheWoman. The hashtag signals an imperative to presume the veracity of an accuser’s allegations, even in place of the customary presumption of innocence for the accused. There has been much discussion about what this means about due process in the age of #MeToo. It is important, in this context, to distinguish between the court of public opinion and the type of investigatory process to be conducted as best practice in the workplace.
The individual charged with investigating an employee’s complaint of sexual harassment at the workplace must make their best efforts to neutrally investigate the complaint and to reach a reasonable and defensible conclusion given the evidence that is discoverable and available to them. They must do so from a starting point of objectivity.
The Investigations Process
In order to protect the due process rights of the accused and the Title VII rights of the accuser, it is vital that a company have a competent investigation practice that acts appropriately on its findings. The elements of a thorough investigation include:
1. Crafting a high-level investigation plan and validating it with key stakeholders.
2. Meeting with potential witnesses, reviewing any documentation available (i.e., instant messages, emails, texts, etc.) and looking for any other objective means of substantiation possible.
3. Questioning by a means that is designed to balance disruption to the business and elicit truthful, open and thorough responses, as well as maintain the confidentiality of the original complaint.
4. Coming to a recommendation that is discussed with key stakeholders.
5. Documenting that the investigation was completed.
6. Ensuring that the finding does not include legal conclusions, but rather references to internal company policy.
7. Having the document include what remedial action, if any, was taken.
8. Advising the complainant of what the high-level findings were.
In more detail, companies should consider the following steps and processes:
Getting Started
Create a confidential file apart from the complainant’s personnel record. Arrange for a private space in which to conduct interviews.
Preparing For Interviews
Review the personnel files of anyone involved. Review any company policies regarding sexual harassment. Review the filed complaint carefully, and review any and all investigation process documentation.
Complainant Interview
Begin by explaining what they can expect during the investigation process. Assure the complainant that the company will keep the investigation confidential (to the extent possible) and that the employee should not be subject to any retaliation for filing the complaint. Ask, without requiring, the employee to maintain confidentiality as well.
Then, interview the complainant to gather facts that pertain to:
• What happened during the incident.
• Effects of the alleged harassment on the complainant.
• The involvement and names of any witnesses.
• What the complainant is looking for as an outcome of the investigation.
Ask open-ended questions that are phrased to illicit more than just yes or no answers. Assess the complainant’s credibility by analyzing body language, eye contact and the consistency of her or his responses. Take each of the individuals involved seriously, and don’t take sides — reserve judgment until after the investigation when all evidence has been gathered and reviewed. Be sure to take notes during and/or after the interview.
Witness Interview(s)
Explain the purpose of the interview at a high level, but do not give away specifics. Do not identify the complainant or the alleged harasser at the beginning of the interview; instead, ask general questions about whether the witness has seen instances of harassment in the workplace.
Narrow the questions and become more specific if the witness’s answers do not elicit the information needed. Collect specifics on what he or she knows, and be sure to distinguish between first-hand knowledge and hearsay. Assess the witness’s credibility by analyzing body language, eye contact and the consistency of responses. Take careful notes during and/or after the interview.
Alleged Harasser Interview
Ideally, this should be the final interview. Start by asking biographical questions (i.e., name, title, department, etc.) to establish baseline for assessing the interviewee’s behavior and demeanor. Ask general questions designed to elicit broad responses where the alleged harasser may answer, sometimes inadvertently, the questions and issues raised by the complaint, without yet being told of its underlying subject matter. Ask increasingly narrow questions if answers to the broader questions are unresponsive.
Disclose and explain the purpose of the interview, but advise that no decision has been made about whether the allegations are true or what kind of response is warranted. Identify the specific basis for the harassment complaint, and ask the interviewee to respond to the allegations.
Collect names and contact information of witnesses who can corroborate or support the alleged harasser’s account (though they may have already been interviewed). Assess the alleged harasser’s credibility by analyzing body language, eye contact and the consistency of responses. Again, take notes during and/or after the interview.
Evaluating The Facts
Evaluate all the facts from a neutral perspective. Draft a conclusive report that:
• Is chronological in nature.
• Provides the details of the complaint.
• States a conclusion as to whether there were any policy violations (but avoids legal conclusions).
• Recommends corrective action if it is concluded that there was a policy violation. Corrective action should be reasonable, justifiable and consistent with discipline imposed in similar situations.
Concluding The Process
Review the report with relevant stakeholders. Follow up with the complainant about the high-level results of the investigation, and, if the complaint was substantiated, explain that appropriate disciplinary action was (or will be) taken, without necessarily disclosing the nature of such action. Then, carry out the recommended corrective action, if any.
Workplaces that employ these steps and processes are well on their way to ensuring that their employees receive the due process they are entitled to, that their investigations will be deemed legally defensible and that undesirable circumstances will yield the best outcomes.
