Sexual Harassment Investigations: Who should investigate? Will we do it in house? Will we outsource it? As you decide the answers to these important questions, consider the following:
- How serious is the reported conduct?
- Is the CEO or another member of senior leadership involved?
- Has the employee filed a claim in court or with a government agency?
- Has the employee hired an attorney?
- Is there an experienced, impartial investigator in-house?
- Is that investigator comfortable with the subject matter?
- Would the investigator be a credible witness?
- Can the investigator maintain confidentiality?
Severity of Conduct and Who is Involved
In-house investigators may be effective, especially when the situation does not involve extremely severe or pervasive misconduct or senior leadership. In such cases, an investigator who knows the workplace can efficiently obtain information necessary for the decision-makers. Outside legal counsel can provide guidance.
Extremely serious allegations, and allegations of misconduct by a member of senior leadership, often warrant consideration of an outside investigator. Outside investigators typically are not subject to improper influence by high ranking company officials. Further, they can report directly to the Board without upsetting “the chain of command.” In addition, they generally are viewed as impartial. All of this gives the various interested parties confidence in the process.
Attorneys often serve as outside investigators, even if no lawsuit is threatened or pending. Unfortunately, deciding which attorney can be complicated. One benefit of hiring a lawyer is the attorney-client privilege. Even so, an employer’s relationship with a law firm is not the only factor to consider. In sexual harassment lawsuits, an employer might benefit from waiving privilege and disclosing the investigation. When that happens, the attorney-investigator may have to testify, which compromises his/her ability to defend the employer. It is prudent to consider these issues before deciding which attorney should investigate so that the employer does not inadvertently jeopardize its ability to use its preferred lawyer to defend it.
Pending or Threatened Claim
If a legal claim is pending or threatened, or if the person who filed the complaint has retained legal counsel, engaging an attorney to investigate should be considered. Decisions about waiving privilege are less likely to occur if the attorney is investigating a pending or threatened claim.
Characteristics of Credible Investigators
Credibility demands impartiality and experience. For example, knowledge of sexual harassment law can help the investigator remain thorough without going off track. Moreover, investigators must possess the skill to ask difficult questions in a calm, professional manner. Further, they must be able to evaluate credibility. Sexual harassment investigations often involve discussion of graphic sexual or extra-marital conduct and/or intimidation and threats. When dealing with such content, the investigator must do a thorough job of gathering facts without appearing judgmental or uncomfortable. Building rapport is critical to getting the interviewee to open up despite embarrassment or fear.
Investigators must not jump to conclusions. Things are not always what they seem. As one example, in sexual harassment cases, it is important to understand the difference between “consensual” and “welcome.” There are many reasons why an employee may be afraid to speak up when faced with unwelcome behavior by a supervisor. Implicit consent by silence (and, in some cases, express consent) does not necessarily mean that the behavior is welcome. As another example, an investigation should not end solely upon learning that the parties once were involved romantically. Situations change, and employers must consider facts as they existed at the time of the complaint. Investigators should thoroughly gather facts to help the employer make an informed decision about next steps.
The Investigator as Witness
Sexual harassment allegations often end up in litigation or arbitration. Therefore, the investigator must be a credible witness. There must be no appearance that the investigator tried to steer the findings to a predetermined result. The investigator must be comfortable answering questions about the investigation process and results in a deposition or other legal proceeding.
Investigators must understand the importance of disclosing information relating to the investigation only on a need to know basis. Confidentiality during the investigation is important to protect its integrity. Similarly, confidentiality after the investigation is important to reduce the risk of defamation or retaliation.
In my next post, I will discuss the scope of the sexual harassment investigation.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)