In 2020, the EEOC reported over 24,000 claims of harassment and over 11,000 claims of sexual harassment. Harassment in the workplace impacts more than just the individuals in the situation – these conflicts (and how leadership responds) can negatively impact both the culture and the reputation of the company. You must be prepared to quickly respond to harassment claims in order to protect both your employees and the company as a whole. In order to do so, you must have well-known reporting policies and easily implemented workplace harassment investigation procedures.
The first element to consider is to ensure policies and procedures are in place, clearly communicated to employees, and are consistently applied across your organization. When a situation escalates out of an employee’s control, it’s key for them to know how to react, how to report, and who to call.
It can be challenging to uncover the details, key players, and facts in a workplace harassment investigation. It requires an experienced and savvy interviewer to avoid risk and to provide fair and just outcomes. So what steps are important when conducting internal investigations?
Separate the Employees
When HR receives a complaint of harassment, the parties involved should be immediately separated from further contact. This may cause work disruption; however, it’s prudent to prevent any further exposure to what may be harmful interaction. Additionally, it’s important to emphasize that retaliation will not be tolerated under any circumstances.
Conduct Thorough Interviews to Understand the Facts
Conducing the workplace harassment interviews may be the most difficult part of the investigation puzzle. It takes strategic planning and a conscious effort to conduct the investigation without leading the participants in any way. Interviewers should start with basic facts such as details of the incident, when it took place, where it took place, how often the interaction occurred, with whom, how the incident made the employee feel, and the names of witnesses or any evidence such as texts, emails, photos, etc. If the complaining employee is willing to prepare a written statement, the statement can be used to compare interview notes and to ensure nothing was omitted and miscommunicated.
How to approach interviewing the complainant:
When interviewing the complainant, interviewers should explain that every effort will be made to protect the conversations and the individual’s privacy. However, they must also be made aware that in order to properly conduct the investigation, the alleged harasser and other members of leadership may need to be informed. Employees, at times, report an incident, but state that they “don’t want to get anyone in trouble” or “don’t want to get anyone fired.” If you (the employer) are made aware of a potential situation of misconduct, the employee reporting the incident must be informed that you will investigate and take appropriate action in line with organizational policy, integrity, and federal and state laws.
The last part of the interviews should include the timeline for when you plan to conclude the investigation and share outcomes. A best practice is to investigate and return results in no more than two weeks. Rapid closure is the goal.
How to approach interviewing the accused harasser and witnesses:
When interviewing the alleged harasser, interviewers should provide necessary facts about the complaint and ask questions in an effort to provide the employee with an opportunity to share their perspective and/or to provide witnesses and evidence in their favor. Keep in mind, witnesses are not always cooperative. They may wish to stay uninvolved or attempt to protect a friend. The interviewer must gently persuade witnesses, focusing on the importance of their role in the process. Again, the interviewer must ask questions without leading or making any assumptions until all statements and evidence are heard and collected. Impartiality must be maintained for the entire investigation process.
Review the Evidence
Once the investigation is complete, the interviewer should thoughtfully and completely review all notes, materials, and evidence to determine if any company policies have been violated or laws broken. This step can have wide-reaching implications – a flawed investigation can lead to poor morale and discourage employees from reporting future situations. Therefore, the investigator’s role is imperative.
Prepare a Written Report and Concluding Actions
As the investigation wraps up, the investigator should prepare a written report, outlining the facts and violations (if any), used to determine if other action is warranted. If policy or legal violations did take place, management must decide on discipline or corrective action, keeping in mind that this action will set a precedent for future violations.
The final step in the process is to meet with the employee who reported their concerns. The manager or investigator should inform the employee that action was taken to address the problem or that the investigation could not corroborate that company policy was violated. It’s important to note if disciplinary action was taken, the company should not share details about the action with the accusing employee.
If there are concerns with privacy, neutrality, or experienced investigators, outside resources such as HR Consultants or law firms may be engaged to conduct the investigation.
Special thanks to Angela Dunaway, SPHR-SHRM-CP, for contributing to this edition of our Emerging Issues in HR.
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