In 2003, the New Hampshire Supreme Court decided a case in which a female employee of the MPB Corporation sued for sexual harassment and retaliation when she was fired eight days after complaining about being sexually harassed by her superior. Managers for the Corporation conducted an inadequate investigation of the harassment complaint, failing to involve the human resources department and taking no action against the accused. The jury awarded the employee over $83,000 in lost wages and emotional distress, and over $350,000 in punitive damages due to the Corporation’s failure to enforce its own anti-discrimination policy. Madeja v. MPB Corp., 821 A.2d 1034 (N.H. 2003). While this case certainly highlights the need for companies to thoroughly investigate all complaints of harassment/discrimination, many employers are unclear as to how to go about doing so. In this newsletter, we will take a closer look at the essential components of an effective harassment/discrimination investigation…
Once an employer or its agent becomes aware of the alleged harassment/discrimination, an investigation should be commenced without delay. Likewise, the investigation should be completed as soon as possible.
Choosing The Investigator
When an employee approaches a manager, supervisor or human resources representative with a complaint of harassment or discrimination, the company/employer thereafter becomes obligated to investigate that employee’s complaint. The first determination that needs be made is who will conduct the investigation. One potential “internal” candidate is a member of your company’s human resources department. Oftentimes, however, these investigations are extremely complex and time-consuming, and a company’s HR department might lack both the experience and time necessary to thoroughly investigate the claim.
Another choice is to retain an outside firm to conduct the investigation for your company. Such firms are usually made up of lawyers who have the experience and expertise necessary to conduct a proper investigation. In addition, much of the work conducted by a lawyer is “privileged” and may not be used in court should the claim lead to litigation, while no such privilege applies to an investigation conducted by internal HR personnel.
Once the investigator is chosen, other preparatory matters for consideration include which employees to interview, in what order to interview them and where the interview should take place.
Who, When, and Where?
Who? Clearly it is necessary to interview both the complainant and the accused. However, during the course of an investigation, it might become apparent that other employees were present at the time and place of the alleged harassment/discrimination, or that ther employees have information relevant to the complainant’s claim(s). In such cases, it might be necessary to interview these additional witnesses. It is important to note, however, that an investigator should avoid interviewing too many unnecessary witnesses, as this often disrupts the company “culture,” damages employee morale and makes preserving the confidentiality of the investigation an almost impossible task.
In What Order? The complainant should be interviewed first, followed by any relevant witnesses before interviewing the accused. By employing this method, the investigator is armed with as much information as possible with which to question the accused, and is better able to obtain rebuttals/responses to all of the complainant’s claims. Where? The interview should be conducted in a confidential, private area with no distractions.
Drafting Interview Questions
It is critical that the investigator take the time beforehand to prepare appropriate, specific questions for all of the people he/she plans on interviewing. When interviewing the complainant, the investigator should ask questions which are designed to get at the “who, what, where, when and how” of the complainant’s claim(s). The investigator should also ask the complainant what he/she considers a potential resolution to the problem. When interviewing the accused, the investigator should note all of the complainant’s claims and elicit detailed responses to each one. All interviewees should be reminded of the company’s anti-harassment, anti-discrimination and non-retaliation policies, as well as encouraged to contact the investigator should they think of any other relevant information or have any questions. It is also a good idea for the investigator to ask them if they know of any other relevant people that should be interviewed, and they should be reminded that confidentiality of the investigatory process is of the utmost importance.
After many years of conducting investigations, one thing is clear to us — no matter how convincing a particular witness is, it is best to reserve making judgment until the end of the interview process. The purpose of conducting interviews is to gain as much information as possible, but to also assess the credibility of all parties involved. Each interviewee, however, is just a “piece of the puzzle,” and the credibility of each individual should not be evaluated until each has had a chance to tell his/her side of the story.
Conclusions and Recommendations
After all the information has been gathered and analyzed, the investigator should memorialize his/her conclusions as to the veracity of the complainant’s claims and the credibility of the parties involved. The investigator should also recommend what action your company should take. However, the investigator might also be in a position (especially in cases where the investigator is an outside firm) to recommend changes to your company’s policies and practices in order to better prevent similar situations from occurring in the future. Investigating employee claims of harassment/discrimination is a complex and arduous, yet necessary process. An ineffective investigation procedure which is inconsistently applied reflects negatively on a company. As an employer, you want to send the message that you take your own anti-harassment and anti-discrimination policies very seriously — a message that will prevent and help defend against future litigation.