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Investigating
Sexual-Harassment Claims
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Business New Haven
9/8/1997
By: Barry J. Waters
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Employers often run into trouble with sexual-harassment claims because they fail to conduct thorough investigations. Companies cannot play dumb as a means of avoiding liability. If the employer knows or should have known about sexual harassment, it will face liability unless it takes immediate and appropriate corrective action.
The investigation should begin immediately - that is, within one to three days and in no event more than a week after the complaint is registered. The investigator should have a rank higher than the accused. Begin investigating with no preconceived ideas of what conduct did or did not occur, whether sexual harassment did or did not occur, or what response is appropriate.
Start with the complaining party:
• Ask the five “W” questions, i.e., who, what, when, where & witnesses.
• Get very specific answers, but ask permission before asking any questions that are explicit in nature.
• Get specific answers as to severity and frequency of the harassment.
• Have him or her prepare and sign a detailed written statement. At a minimum, the investigator should prepare a statement of the complainant's claim and have the individual sign and date it.
• Explain the next steps: Interview the accused and any witnesses and co-workers who may have information about the incident(s).
• Give a timetable for completion of the investigation and stick to it. Stop any harassment while the investigation is proceeding.
• Ask the complainant what he/she wants: Although the company may be able to be flexible in its approach, many times it will have to take action that has not been requested, such as disciplining the accused. Similarly, you obviously cannot dismiss the accused based solely on the complainant's wishes.
Interview the accused harasser:
• Explain that 1) no decision has been made on the truthfulness of the allegations; 2) the purpose of the interview is to give the accused a chance to respond to the allegations; 3) the company takes complaints regarding sexual harassment very seriously and will conduct a thorough investigation; and 4) the company will take appropriate action once the investigation is completed.
• Tailor questions to responses given by the accused. If accused admits the allegations, ask whether the accused thought the actions were welcome or inoffensive. If the accused denies the allegations, ask his or her opinion about why the complainant made the complaint.
• Ask for names of witnesses that can corroborate the accused's version of events.
Interview all potential witnesses individually:
• Explain that the company is investigating a complaint of sexual harassment, but do not identify the parties.
• Assure the employee that the company will not tolerate any retaliation against the employee for participating in the investigation.
• Ask general questions at the beginning. For example, “Have you observed any conduct at the company that you or someone else might consider to be sexually harassing?”
• Record whether the witness has first- or second-hand knowledge about the matter.
• Type notes and determine whether any follow-up questions should be asked of the accuser or the accused.
Create a confidential file that will contain the interview reports and signed originals of any statements that are taken. Reports should include commentary rather than mere recitals of answers to questions. Do not draw conclusions about the merits of the claim until the investigation is completed.
An impartial, thorough, timely and effective investigation - coupled with appropriate remedial measures - will in the long run reduce the number of potential claims against the company.
Barry J. Waters is a partner at the law firm Murtha, Cullina, Richter & Pinney, which has offices in Hartford and New Haven. Waters' practice is concentrated in employment litigation and commercial trial work.
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