Investigating Sexual Harassment Complaints Part II: A Sample Procedure

Scott F. Uhler and Rinda Y. Allison

Preparing for the Investigation

An effective investigation depends on careful planning. The investigator should review the personnel files of both the complainant and the alleged harasser. The investigator should place in the investigation file any past complaints of sexual harassment made by or against either party and their resolution. The investigation file should also include the workplace sexual harassment policy and/or complaint procedure and the means by which this information is disseminated to its employees.

Review the applicable policies or work rules. The investigator should always keep in mind the elements of sexual harassment or other relevant work rules so that he or she will remain focused on whether the facts acquired during the investigation tend to prove or disprove the alleged violations.

The investigator should carefully document each step of the investigation, including interviews with witnesses as well as any unsuccessful attempts to acquire information or contact witnesses. The total amount of time spent during the investigation will help build a record of a careful investigation and thus, an adequate employer response.

Interviewing the Complainant

The investigator should attempt to talk to the complainant as soon as possible. It is appropriate in this conversation for the investigator to reiterate that the library does not tolerate or condone sexual harassment and encourages victims to bring incidents of sexual harassment to the attention of the school district. The investigator should also stress how it will carry out a prompt investigation in as confidential a manner as possible.

The investigator should ask the complainant for any documents, tape recordings, or other evidence regarding the allegations of harassment, as well as for a list of witnesses that should be contacted. The complainant should be asked to provide a complete sequence of the events the complainant believes to be sexual harassment. The investigator may follow the narrative with specific questions designed to evoke detailed information of what was said, who was present, how long the incident lasted, and the dates, times and location of the harassment. It may be helpful to ask the complainant to draw a diagram to show the location of both parties during the incident.

The complainant should also be asked about her reaction to the conduct and her personal feelings following the incident.

Some examples of possible questions to be asked of the complainant are as follows:

1. Name and position of complainant.

2. Who is the alleged sexual harasser? What is his name? Is he a co-worker or supervisor?

3. Is the sexual conduct complained of verbal or physical? (If the conduct was physical, the information to be gathered should be very detailed: where the claimant was touched, when, how often, how often was she approached, where the claimant was when the conduct took place, whether medical treatment was required and, if so, when she was treated, how often, by whom, where and what the diagnosis was)

4. How often did the harassment occur?

5. On what dates and at what times did the harassment take place?

6. Where did the incidents of harassment take place (in the workplace or off-premises, as well as actual locations)?

7. Who, if anybody, witnessed the incidents of harassment.

8. How was the complainant affected by the harassment? Has it affected her work performance?

9. How did the complainant react to the harassment? What actions did she take to indicate to the alleged harasser that the conduct was unwelcome?

*Scott F . Uhler is a partner, and Rinda Y. Allison is an associate with the law firm of Klein, Thorpe and Jenkins, Ltd., which has offices in Orland Park and Chicago. The firm represents many libraries clients in Illinois as well as other local governments.

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10. Did the complainant make any complaints or protests of the harassment to the alleged harasser or to any co-worker or supervisor? Who, when, where, and what was said and what was the response? For example, in one case the complainant had only indicated that there was a "personality conflict" and the court held this did not put the employer on notice of a sexual harassment complaint and thus, the employer was not liable.

11. Did the complainant tell anyone else about the incidents of harassment? Who, when, where, and what was said and what was the response.

12. If no complaints were made, why not?

13. Was the alleged harassment directed at persons other than the complainant or was she singled out for the behavior? Why? Does the complainant know of or suspect that there are other victims of harassment by the same person?

14. Has the alleged harasser made or carried out any threats or promises in connection with the sexual conduct?

15. Did the complainant and the alleged harasser have a prior consensual relationship? If so, how long did it last and when did it end?

In addition to documenting the factual information, the investigator should record his or her impressions regarding the credibility of the witness. A credibility determination results from a number of factors, including the demeanor, coherency, body language, capacity to retain facts, sincerity or bias demonstrated by the individual. Because these sorts of impressions are highly subjective and, therefore, subject to abuse, the investigator should identify the basis on which the impression was made (for example, "the witness appeared sincere because she answered my questions directly and without hesitation" or "the credibility of this witness may be suspect because she freely stated that she carries a grudge against the alleged harasser").

If the complainant does not cooperate during the interview or investigation, document the requests for information made by the investigator and the complainant's failure to respond or cooperate. (These comments apply equally to the alleged harasser and other witnesses, as well as to the complainant.)

Interviewing the Alleged Harasser

When meeting with the individual named as the harasser in a sexual harassment complaint, the library should ensure that the minimum due process standards of notice, an explanation of the evidence, and a meaningful opportunity to respond to the charges are present. The interview should be treated as any other incident that could result in serious discipline, and the administrator who usually handles such discussions should assume his or her usual responsibility. The discussion should inform the accused of the purpose of the meeting, the charges of sexual harassment, the evidence against him, the possibility of discipline if such charges are proven, and, if applicable, the possibility that such charges will also be provided to the police by the employer. The employee should be given an opportunity to respond.

The procedures used may, at least in part, be set forth in the provisions of any applicable collective bargaining agreement. The agreement should be carefully reviewed to determine whether its provisions will impact any aspects of the investigation, significantly, an employee's Weingarten rights to representation. As defined by law, a union member's Weingarten right is the right to representation in an investigatory interview, in which the employee reasonably believes that discipline may result. The interview with the alleged harasser during the investigatory stage of a sexual harassment complaint will not necessarily result in discipline, but the harasser could reasonably believe that it will if he is found guilty of sexual harassment. The collective bargaining agreement may also have extended the scope of the employee's right to representation, as well as other rights.

During the interview, the alleged harasser should, of course, be given the opportunity to respond to each of the allegations against him. Common responses to a sexual harassment charge are 1) the complainant is lying, and 2) the conduct was not unwelcome. If these responses are given, they should be pursued by questioning regarding whether the alleged harasser knows of a reason why the complainant would lie or, with regard to the latter response, what facts would help show that the conduct was not unwelcome (e.g., that all the employees, both female and male "kid" around and use the same type of language, tell "dirty" jokes, etc.). The alleged harasser should be encouraged to provide any written documentation, witnesses or other evidence that may support his position.

If a criminal charge is pending against the alleged harasser, he may refuse to answer questions on the basis of his fifth amendment protection against self-incrimination. This defense is inapplicable to questioning solely for the purposes of employee discipline. The school district can order the alleged harasser to answer questions regarding the complaint so long as it is made clear to the employee that the information cannot be used against him in a criminal suit. If the alleged harasser continues to refuse to answer, the employer may discipline the employee for insubordination consistent with state law and the provisions of any applicable collective bargaining agreement.

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Gathering Information from other Sources

After the information has been gathered from the complainant and the accused, the investigator should identify any other persons who should be interviewed and what documents, if any, should be collected. Potential third-party witnesses include persons identified by the complainant or alleged harasser as witnesses to an incident (or lack thereof), employees who work with either or both parties, or supervisors who might have observed the demeanor of the accused or the complainant around the time that the sexual harassment allegedly occurred.

An outline of written questions should be prepared for each interview. At the start of the interview, the witness should be admonished about the serious nature of the investigation and the need for confidentiality, and the potential of a defamation charge if he or she makes unauthorized statements outside the interview. (Statements made by employees in good faith as part of an employer's investigation of a sexual harassment complaint are, of course, protected by a qualified privilege.) In order for the investigator to avoid revealing any damaging information that the witness does not have independent knowledge of, the investigator should initially phrase questions broadly. If the witness does not respond, the investigator may have to ask more specific questions. For example,

A. Are you aware of any problems in the work area? If the first question fails to elicit a response:

B. How do (the complainant) and (the harasser) get

along?

C. Are you aware of (incident related by claimant or alleged harasser)?

D. Have you noticed any changes in the complainant's behavior at work or in the alleged harasser's treatment of complainant?

If possible, obtain signed statements from persons who are interviewed.

Occasionally, the investigator may believe that a physical search is necessary to seek evidence that may corroborate the charges of either party. A search by a public employer for evidence of work-related misconduct is permissible only if it is reasonable under all the circumstances, which requires the employer to demonstrate that the search was justified at its inception and reasonably related to the circumstances on which the search is based. Obviously, whether a search is reasonable depends on the specific facts present in each situation.

Making a Determination and Concluding the Investigation

At the conclusion of the investigation, the investigator must consider the evidence gathered from all the sources. Evidence should be afforded more weight to the extent that it is firsthand knowledge rather than hearsay, rumor or gossip. Additionally, evidence acquired from witnesses who have been identified as lacking credibility should be considered less persuasive.

The investigation should be documented in a written report prepared by the investigator, including the following information:

1. A summary of the allegations and the accused's response;

2. A summary of the persons interviewed, the information provided and any facts relating to their credibility;

3. A presentation of the findings of fact (facts, in logical sequence, that tend to prove or disprove the allegations);

4. A discussion of the conclusions about the allegations; and

5. A discussion of the recommendations for remedial or other corrective action.

A finding of wrongdoing must be based on verifiable evidence. If the investigator cannot obtain evidence on which to base a finding of either wrongdoing or innocence, he or she must admit that fact and conclude that the complaint cannot be verified. The investigator may wish to confer with the library's attorney when reaching a conclusion about whether illegal sexual harassment has occurred.

If the investigator concludes that sexual harassment has occurred, the employer must take steps to accomplish four objectives:

a. prevent further harassment;

b. punish the offender for the harassment;

c. neutralize the workplace from the offensive conduct and retaliation; and

d. to the extent possible, make the victim whole.

The appropriate punishment will depend on the seriousness of the violation, the district's treatment of similar misconduct by other individuals and, possibly, the terms of an applicable collective bargaining agreement. Although the question of appropriate discipline is not within the scope of this article, it should not be underestimated as an area of potential conflict between the rights of the parties and the contractual and statutory restrictions imposed on the library.

If the investigator finds that no harassment has occurred, the investigation should be closed. A statement of the results of the investigation should be placed in both employees' personnel files.

In either case, both the complainant and the accused should be notified of the results of the investigation, and, if sexual harassment was found, the

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discipline imposed on the harasser and any other Follow-up will undoubtedly be appropriate to ensure the harassment has stopped and no retaliation has been directed toward the victim or witnesses.

The results of a careful investigation are that the action necessary to prevent further harassment, rights of the employees will be protected, the library will have fulfilled its obligation to respond to the charges, and both the library and its employees can resume working toward their primary objective of serving their community.

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