Investigating Claims of Harassment: A Step-by-Step “How To” Part 5: Other Sources of Evidence, Summarizing the Investigation, and Reaching a Conclusion
February 20, 2018
Authored by: Mimi Moore
Before concluding a harassment investigation, the investigator should follow up with other possible sources of evidence, record and summarize the investigation, and reach a conclusion. This fifth part of a six-part series discusses these final steps in the investigation process. As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.
Follow Up With Other Possible Sources of Evidence
The investigator should consider whether any other sources of evidence exist that could aid in the investigation process and gather any such evidence. If the evidence is in the possession of either the complainant or the accused, the investigator should ask that the evidence be shared with him/her.
Some examples of physical evidence that may aid in the investigation process are:
- Time cards
- Calendars or diaries
- Telephone records
- Travel logs
- Expense reports
- Notes, letters, cards, and/or handwriting samples
- Emails, voice mails, and text messages
- Computer files and computer log-in/log-out information
- Internet usage
- Security/surveillance video
- Building entry/exit swipe information
- Offensive material at issue (magazines, calendars, postings, etc.)
- Personal gifts
- Timing of the incident (e.g., just before or after a performance appraisal or just before or after the accused is rejected by the complainant or vice versa)
- Physical evidence, such as maps or relative locations of the parties or the areas in which the complainant and others work
- Prior performance evaluations
- Documents containing other complaints by the complainant, other complaints about the accused, prior investigations involving the same persons, recent adverse actions for people involved and any other documents that would be helpful to the investigation
Record and Summarize the Investigation
It is important for the investigator to keep proper documentation of the investigation, because this documentation will be discoverable if the investigation is raised as a defense during a trial. For example, the investigator should record the facts identified in each interview (i.e., each person’s account of the incidents, including all details). The investigator’s notes should be legible and complete, signed and dated. The investigator should note any discrepancies between the stories told by each person, and cooperation levels of all individuals interviewed.
All of the steps that have been taken to investigate the complaint or situation should be documented, and should include all sources of documentary or other evidence used during the investigation.
It is usually advisable to put all this information in a detailed timeline.
At some time during the investigation, it will be necessary to determine whether written witness statements are warranted, possible, and/or preferable, from any or all witnesses.
All documentation and reports of the investigator should be retained in a confidential file separate and apart from any of the personnel files of the employees involved in the investigation.
Reach a Conclusion
After all interviews are concluded, and all documentation or other evidence has been reviewed and considered, a conclusion must be reached. Issues upon which the investigator may need to reach a conclusion include:
- whether the alleged conduct occurred;
- whether the conduct that occurred violated Company policy;
- the severity of the conduct;
- the pervasiveness of the complained-of behavior; and
- the degree of physical or mental harm or danger, if any, caused by the conduct.
It is advisable to have someone other than the investigator review the investigator’s documentation and recommendation for potential bias.
The investigator should document the conclusions, the reasoning behind them, who was consulted, and the alternatives considered. (The decision may be later judged under the 20/20 hindsight rule, and having the reasoning in writing could be very helpful.)
If a violation of the Company’s policy has occurred, the “punishment” should fit the “crime” and the corrective action should prevent future misconduct. (In many jurisdictions, the legal standard is that the corrective action must be reasonably calculated to end the offending conduct and prevent its recurrence.) Determining the appropriate corrective and/or disciplinary action will involve taking into consideration any previous conduct and the attitudes of those involved. Any corrective action taken should also be proportional to that given to other employees who have engaged in harassment. The most typical forms of corrective action and/or discipline include a written warning, demotion, suspension, requirement that the accused attend training, reassignment, transfer (separating the accused from the complainant), removal from supervisory role, monitoring of the harasser, no salary increase, no bonus, below expectations performance review, and termination. Documentation of the disciplinary action should be placed in the employee’s personnel file.
If you cannot conclude that harassment occurred, it is still a good idea to remind the accused of the Company’s no-harassment policy and give the accused a copy of it. It is also usually a good idea to put a memo in the accused’s file, advising that a complaint was made, that it was not concluded that harassment occurred, and that the accused was reminded about the Company’s no-harassment policy and given a copy of it. This is often the easiest way to be able to check to find out if a prior accusation of harassment has been made.
It may also be necessary to takes steps to correct the effects of harassment. For example, you may conclude that an employee lost overtime opportunities for refusing to participate in a harassing environment. In this case, part of the corrective measures will generally include correction of the missed overtime.
The final post in this series discusses closing the investigation and actions to take after the investigation has closed.
Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their policies and procedures for handling harassment complaints. If you or your organization would like more information on best practices for investigating complaints of harassment or any other employment issue, please contact an attorney in the Labor and Employment practice group.