Seyfarth Synopsis: It is important for companies to investigate internal sexual harassment complaints and take prompt, appropriate corrective action. This post provides a six-step roadmap of best practices for handling sexual harassment complaints.
1. Plan Ahead
- Maintain compliant harassment policies, provide regular harassment training covering all required topics (Seyfarth can help), and communicate the procedure for reporting complaints.
- Determine in advance who will oversee the process for handling complaints.
- Have a crisis management team in place in advance (generally legal, human resources, IT, and communications or public relations).
- Identify and train internal investigators so they know how to conduct an investigation.
2. Initial Steps After Receiving A Complaint
- Determine whether there is a need to conduct a formal investigation and, if so, the appropriate scope of the investigation.
- Consider whether to place the accused on paid administrative leave pending the investigation. Some factors to consider include whether the accused poses a potential safety risk and whether having the accused in the workplace may intimidate witnesses or otherwise impede the investigation.
- Take appropriate interim steps to prevent harassment and retaliation. For example, it may be appropriate to separate the accused and the complainant, instruct the accused not to communicate with the complainant, or to place an upcoming performance review on hold pending the conclusion of the investigation.
- Determine who will conduct the investigation. Choose the investigator carefully, as that person may need to testify in any legal proceeding.
- Investigators must be free from actual or apparent bias or conflict of interest. For example, an investigator should not investigate the conduct of the investigator’s superiors or friends.
- Determine whether to retain an outside investigator. Consider whether the investigator needs a particular expertise.
- Evaluate whether to retain a lawyer to conduct the investigation and whether the investigation will be covered by attorney-client or attorney work product privileges. The company can decide later whether to waive a privilege and rely on the investigation as part of a litigation defense.
- Preserve evidence that may be relevant to the investigation. The evidence may include emails, texts, and internal messages. Involve IT as necessary.
- Develop a public relations strategy if there may be potential media coverage or publicity.
3. The Investigation Process
- Conduct investigations promptly. If there was misconduct, it should be corrected as soon as possible.
- Determine an investigation plan, but remain flexible. The number of witnesses interviewed and documents reviewed should be appropriate to the situation. Facilitate the investigator’s access to the relevant witnesses and the documents.
- An investigation is a fact-finding mission. The investigator should approach the investigation with an open mind.
- Consider the order in which witnesses are interviewed and what information to share with witnesses. Generally a best practice is to interview the complainant first and the accused last. Witnesses should be told that the company will maintain confidentiality consistent with the need to investigate.
- Prepare notes contemporaneously or soon after the interviews. Document key quotes and any admissions made. Be thoughtful about your notes, as they may be discoverable if the matter results in litigation. Decide whether to have the witnesses submit or sign statements.
4. Reporting the Findings
- Determine whether a written report is necessary for all or parts of the investigation and, if so, what level of detail is appropriate for the report.
5. Determine Who Will Decide and Take Appropriate Corrective Action
- Generally the decision-makers should not be lawyers.
- Corrective action may include, for example, discipline, coaching, further training, and other steps to prevent future harassment and retaliation.
6. Close Outs And Other Follow Up After The Investigation
- Inform employees involved with the investigation that the investigation has concluded and that the company has taken appropriate action. The company may not be able to share more information due to privacy concerns.
- Instruct employees to report any further concerns through the appropriate complaint channels.
- Remind them that company prohibits retaliation. Instruct employees to report any retaliation promptly.
Workplace Solutions: While is there is no “right way” to conduct an investigation, all investigations should (1) start with an investigation plan that may include interviewing the material witnesses and reviewing key documents, (2) be conducted as promptly as reasonably possible, (3) be conducted by a trained, impartial investigator, (4) be documented appropriately, (5) be followed by appropriate corrective action and steps to prevent harassment and retaliation, and (6) appropriately inform employees when the investigation has closed.