Investigating Claims of Harassment: A Step-by-Step “How To” Part 6: Closing the Investigation and Additional Steps Thereafter
February 27, 2018
Authored by: Mimi Moore
This final installment of a six-part series on harassment investigations discusses how to close the investigation and steps to take after the investigation has been closed. As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.
Close the Investigation
Once the investigation has concluded, it is essential to close the investigation with the complainant, each witness, and the accused. It may also be prudent, in some circumstances, to follow-up with the entire workforce. All close-out meetings that are held should be documented. When closing the investigation with the complainant, and generally with each witness, here are the key points to tell each person:
- We are closing our investigation based on the information as we know it now. (This allows you to reopen if you learn more later.)
- The Company has a strong non-discrimination and non-harassment policy. (Consider providing or showing a copy of the policy.)
- The Company takes claims of discrimination and harassment seriously and follows up to stop it, if we can conclude that inappropriate conduct occurred.
- (If appropriate:) We have taken action on the complaint that we received, but we are not free to disclose any disciplinary action taken toward other employees. (It may be appropriate to tell the complainant more here, such as specific actions taken, in order to help reassure the complainant that reasonable steps have been taken to end the conduct and prevent its recurrence, and/or to inform the complainant of any limitations or restrictions on interaction with the accused. For example, you may want to inform the complainant that the accused has been moved to a different department or will no longer have supervisory authority over the complainant.)
- The law, as well as the Company’s policy, prohibits retaliation because (for the complainant) you brought forward your concern (or for witnesses) you were identified as a witness in a situation and provided information about it. If you feel that something has occurred in the future because of retaliation, you should contact “x.” Also, if you feel that you have been harassed again, you should contact “x.”
- I am sure you can understand that this is a sensitive matter and that people’s privacy interests are at stake. We ask that you not discuss this on the floor (or other reminder about confidentiality if appropriate).
- Thank you (for the complainant) for bringing your concerns forward and giving us the opportunity to address them. (For the witness) … for answering our questions and assisting with this investigation.
Similarly, when closing the investigation with the accused, it is important to emphasize the Company’s anti-retaliation policy, and even if it is determined that no harassment occurred, the accused should be informed that the conduct was perceived as harassment and reminded of the Company’s no-harassment policy.
Further Follow Up
Calendar a follow-up with the complainant periodically for several months to ensure that the harassment has stopped and that no retaliation has been suffered and document that follow-up as well.
Your Final File
Set up a separate file for each investigation, which should typically contain:
- Log of your actions, including all meetings and calls by date and time.
- Contemporaneous and final interview notes for each witness, as well as notes for each meeting with the complainant and the accused.
- Notes or copies of all communications to and from witnesses, including complainants.
- All witness statements.
- Any written complaints.
- All documents which establish or refute issues investigated.
- Relevant physical evidence, such as e-mail, photos, etc.
- Your report, if any. (A summary report should be prepared for complex investigations and should include information about the complaint, factual findings, timetable of the investigation, recommendation and any action taken.)
- Documents reflecting notification of investigation results and any remedial action.
- Copy of Policy (in case policy changes in future).
- Copy of acknowledgement form indicating that accused received harassment policy.
- Notes about closing meetings with complainant and witnesses.
- Notes about follow-up meeting(s) with complainant or others.
Establish a System for Organizing and Maintaining Files
Your Company should track all complaints of harassment and all discipline issued.
All harassment files should be maintained in a central location but should be kept separate from personnel files.
Each time a new complaint of harassment is made, the investigator should check to find out whether a prior complaint of harassment has ever been made against the accused and, if so, should become familiar with the details and results of any such investigations.
Investigating harassment complaints is an art, not a science, and each investigator will develop his/her own approach. The suggestions outlined in this six-part series should provide helpful guidance to newcomers and a handy refresher to experienced investigators.
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.