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Special Considerations in Sexual Harassment Investigations

Although everyday conflict, personnel decisions, and compliance concerns may abound in your workplace, the emergence of a sexual harassment complaint can really throw you for a loop. Leaders in human resources, as well as in-house counsel, face numerous dilemmas when a sexual harassment complaint arises. More than 20 years of conducting sexual harassment investigations have provided me with insight into the special considerations that will give you confidence to face the allegation and navigate the swirling waters of sexual harassment claims while ensuring the dignity of the parties, appropriately handling the potential involvement of law enforcement, attorneys and even parents, and assessing credibility in these complex situations.


Dignity of the Parties
By definition, “sexual” harassment claims contain information that is sexual in nature that someone found offensive - sensitive subject matter that may be embarrassing to your employees. Respecting their dignity is critical to not only obtain relevant information, but also to maintain and cultivate a respectful workplace. 
How best to allow investigation participants to maintain their dignity? First, interview the parties in a quiet and private location not within view of their colleagues. Taking steps to avoid gossip about the purpose of the necessary meetings is critical. When asked whether there was a private location for interviews, one employer led me to an upstairs glassed-in conference room that looked out over the entire facility. Not okay, NOT private.   
Second, as the investigator, you must understand the details of the complaint and the prospective scope of the investigation. Tell the parties that you interview to whom you will report the information. Explain that you understand they may be uncomfortable sharing certain information with you; however, the employer will be unable to address the issue properly if they do not have a complete picture of the facts surrounding the complaint. Regardless of what someone tells you, do NOT express shock, dismay, or disappointment – stay neutral. For example, one employee told me that the guys in her office picked the restroom lock when another guy was using the restroom and took pictures of the individual sitting on the toilet. I wanted to respond, “Are you kidding me?? That’s crazy!!” I did not respond in shock; I nodded and continued to take notes. Simply tell employees that you appreciate them sharing the facts of what happened. 
Third, treat participants in the investigation with respect; welcome them and give them some control over the meeting. Allow employees to take breaks at any point, choose a seat, and decide whether to accept a beverage or tissues. If scheduling concerns require you to cut meetings short, inform employees how you will follow up with them to conclude the meeting. 
Law Enforcement Involvement
When you learn of a sexual harassment complaint, make an initial determination whether any aspect of the preliminary complaint merits the immediate involvement of law enforcement. Is this an allegation that could be considered a crime? Any contention of unwelcome sexual touching might constitute a crime. If it’s an allegation of sexual assault, the complainant may have already contacted law enforcement, or that may be your responsibility – in concert with the employer. Cooperate with any police officers by assisting with locating the parties or witnesses, ideally to avoid any interruption in daily business.   
If law enforcement is involved in a sexual harassment claim, as an employer, you still have an obligation to prevent and correct harassment, and an investigation should still be conducted. I investigated a complaint of sexual assault between employees that resulted in the accused going to jail while the alleged victim went to the hospital. The company wanted to know what happened and if any corrective action was merited. In an effort to sort out the facts, I contacted the assistant district attorney (ADA) and asked whether I could view video from a hotel lobby that showed the parties prior to the incident; the ADA declined but did send an email stating that the video showed the parties getting into the elevator together. That information was a critical fact, as the victim told the police and me that she entered the elevator and went to her hotel room alone. Although I could not determine whether or not she was actually assaulted, I could determine that the victim lied because the prosecutor provided me with objective information refuting what she told me. Alcohol is often a factor in after-hours complaints, so it is no surprise that both the accused and the complainant drank a substantial amount—all courtesy of the company credit card! The moral of the story? If law enforcement is involved and you believe they may have pertinent information, ask for it. They may decline to help you, but you will not know if you do not ask. 
Lastly, with regard to law enforcement involvement, prosecutors may ultimately subpoena your investigation file, and even you, if they pursue criminal charges. 
Parental Involvement
Is the complaining party a minor? What about the accused employee? In certain industries including fast food, recreation, retail, and seasonal work, numerous people might not even be old enough to vote! Even though a minor employee has a direct relationship with his employer, any time a minor is a party, or even a witness, to a sexual harassment complaint, the prudent course of action is to notify the parent(s). Ask the parent for permission to speak with their child, and provide an opportunity for the parent to be present during any interview. 

You are seeking the truth, and transparency regarding minor employees is preferable to a surprised and angry parent confronting you because you were discussing sexual topics with their child. Potentially, that parent could muddy the waters further by posting on social media or contacting the news media directly indicating that your company asks sexual questions of minors. Head off that unpleasant scenario by contacting the parents of minor employees prior to any discussion of a sexual harassment complaint with that minor employee. Ask for the parents’ assurance that they will communicate only with you or their child regarding this matter to protect the integrity of your investigation. Typically, parents simply wish for someone to listen to their child’s story and take appropriate action. When you show empathy and a desire to “gather the facts and get it right,” parents are less likely to respond in a volatile fashion.        
Keep in mind that although the parents may be present, the employee is the interviewee. During one investigation, a father told me that the accused should be terminated for his conduct; however, his daughter previously said the accused employee did NOT deserve to be fired but should be disciplined so he would not engage in similar behavior in the future. You are interviewing the employee and not the parent, whose perspective regarding the facts of the claim may be helpful, but is not relevant. 
Attorney Involvement
If a complainant or accused requests that their attorney be present during your interview, your first thought may be that lawyers add a layer of complexity and could create additional issues, so your reaction might be absolutely not. Take a deep breath, and reconsider your initial response. Because you are conducting an internal investigation into an employee complaint, you are not required to permit the attorney to attend your interview. However, it might increase the employee’s comfort level with an embarrassing topic to allow the employee’s attorney to be present. It also shows your desire to be transparent about the process, get at the truth, and not “trick” the employee. Allowing counsel to be present may also alleviate the possibility of concerns being raised later about how you conducted the interview and the questions you asked.
If you ultimately decide to allow an attorney to be present during an employee’s interview, set ground rules up front. Although the employee and attorney are welcome to have a private discussion at any time during the interview (which you would document in your notes), when you ask questions, the employee is to do the talking. This is not an opportunity for the attorney to object (it’s not a deposition) or answer on the employee’s behalf. Instead, it is an opportunity for the employee to tell you, unimpeded by counsel, what happened. If the attorney is not permitting that process to move forward, you may inform the attorney that their presence is no longer welcome. In one interview I conducted with an attorney present, the attorney said he did not see how his client’s job responsibilities were relevant to her claim; I informed him that it was not a deposition, I could ask what I wished to ask, and if he persists in interrupting the interview, I would ask him to leave. I had no trouble after that exchange! In all of my other numerous interviews with an attorney present, I have not had problems with counsel interjecting. Often, the attorney may be hearing the whole story for the first time as well.     

Credibility in a He Said/She Said Situation
Frequently in a sexual harassment investigation, the complainant complains about conduct that occurred privately with no witnesses present. Often, the accused will deny the allegations. How can you move forward? First, ask about electronic communications between the parties. Text messages, email, and social media activity may shed light on the parties’ relationship. For example, one male employee retained all of the text messages sent from his female supervisor during a six-month time period, all of which aided the investigation. The text messages revealed a pattern of after-hours personal communications initiated by the female supervisor, i.e., “What are you doing? Who are you with? Do you think I’m attractive?” Second, are there security cameras placed where the alleged conduct might have been recorded? I once requested video from two security cameras; however, the employer deleted the recorded information after 24 hours. (As a side note, it might be a better practice to retain security video for at least 30 days.) Third, do the accused and the complainant have history? Have similar complaints been made by, or against, them in the past? Have there been any performance issues? I investigated one complaint where the complainant learned she was being demoted because of performance problems; during the demotion discussion, the complainant made a sexual harassment allegation. Lastly, ask if the complainant can name any other employees with similar concerns about the accused. If so, interview those individuals with an eye toward potential motivation of the parties.
Sexual harassment claims are becoming more common in the wake of the #MeToo movement. A sexual harassment investigation can be, by its nature, a stressful and uncomfortable venture into unchartered territory. If you consider the dignity of the parties, possible law enforcement, parental or attorney involvement, and credibility concerns, you can take significant steps toward a competent investigation.