You are the general manager or owner of an amusement facility and on your desk is a handwritten note that is marked "Personal and Confidential." The note has been addressed to you because you are the one who is designated to receive complaints from employees who believe they have been subject to any workplace harassment related to sex, race, religion, disability, or national origin. This particular note was written by a female employee who is asking to see you to report an incident of harassment by one of her supervisors. This is the first time that you have been called upon to meet with an employee in this situation, and you are understandably anxious about your lack of experience with workplace harrassment claims. You begin by reviewing your company's written policy expressing zero tolerance for harassment of any kind. The policy defines sexual harassment as any unwelcome sexual advance or verbal or physical conduct of a sexual nature between members of the opposite or same sex. In addition, conduct or behavior that creates an offensive and hostile work environment may also give rise to a sexual harassment claim. Your company policy also provides that any sexual conduct that is coerced by a person in a position of authority is considered sexual harassment. What the company policy doesn't explain is how to go about investigating individual sexual harassment complaints. Many questions immediately come to your mind. For example, should you see the employee alone or with a witness present? Should you bring in legal counsel now, or wait until you have gathered all the facts about the incident? What facts do you need to know to start your investigation? This article will answer these questions and will offer advice on how to proceed with your investigation. The article will address two points. The first raises some preliminary considerations to think about before you start your investigation; the second covers how to conduct your initial fact- finding interview.
Preliminary Considerations
First, you may want to consider contacting your company's legal counsel immediately upon receipt of a complaint alleging harassment in the workplace. Legal counsel can identify issues that should be covered during the interview and can provide guidance throughout the investigation process. In our experience as employment counsel, it is usually best for hired counsel to be involved from the very beginning, rather than being drawn into a situation that has deteriorated beyond repair. It may be very hard to undo the damage caused by a poorly executed harassment investigation. Decide if you should be the one to conduct the initial interview. You may want to consider hiring or appointing a trained investigator or supervisor who has a credible, impartial demeanor to meet with the complainant. If you are going to conduct the interview, decide if you should conduct the interview alone or with a witness present. In certain cases, especially where you may have concerns about the veracity of the complaining employee, or if you have a lawyer's letter in hand, it may be better to have a witness present to supply corroboration of what was said and by whom.
The Initial Fact-Finding Interview
As you begin the initial interview with the worker making the claim, it is important to establish his or her comfort level with the process. Be unintimidating, impartial, and nonjudgmental. You should tell the employee that you need to take notes in order to have an accurate record of the meeting. Do not let the employee dictate whether or not notes are taken. Thorough notes are essential to a proper investigation. They will help avoid misunderstandings and will ensure that you correctly understand all of the facts and issues raised. Good notes will also limit the complainant's ability to change his or her story after meeting with an attorney or as memory fades with time. Remember that you will be discussing very sensitive subjects, and people might be reluctant to come right out and explain the real reason behind their complaint. In other words, things are not always what they appear to be, and the real issue that forced the employee to file a complaint may remain hidden until you ask the right questions. For example, an employee may start by telling you that he or she has a problem with a recent evaluation by supervisor, but you discover that the real circumstance is that the employee and the supervisor were in a relationship, that the employee ended the relationship, and that the supervisor is now retaliating by issuing a false misleading evaluation. In other words, what initially sounded like a complaint about an unfair evaluation turned out to be possible sexual harassment. Inform your employee that your company does not permit any retaliation or reprisal for a complaint made in good faith. In other words, complaints that are honestly asserted will not result in any problems for the employee making the complaint. Make sure that the employee understands that what he or she is about to tell you will be kept absolutely confidential, and disclosure will be limited to only those people who have a legitimate reason to know about the complaint.
The Fact-Finding Inquiry
Once you have the confidence of your employee and you are ready to gather the facts, here is a list of areas to explore: What happened and who was involved? Get specifics as to all incidents being reported. When and where did the incident(s) take place? Did the employee tell the alleged harasser that the conduct was offensive and must stop? What else did the employee do to discourage the harassment? What was the response of the harasser to her efforts to discourage his or her conduct? Was the employee's ability to work in your company affected by any way by the incident or alleged harassment? If so, how was his or her work affected? Does the complainant believe that there was any economic loss, such as denial of pay or promotion? Was there any interference with the complainant's job duties or conditions of employment? Did the complainant experience any psychological or physical reaction? Did the complainant have to seek any treatment from a physician or a counselor? Were there any observers or witnesses or any written documentation to back up the employee's version of the incident(s)? If so, who were the witnesses and what did they see or hear? (Make it clear to the employee that you are taking the complaint seriously even if there are no witnesses or other corroborating evidence.) Was the harassing incident just a one-time occurrence, or was it part of a larger pattern of behavior? If it was a pattern, over what period of time did it last? Did anyone else join in? If so, who participated and what did they do? What did the employee do to try to stop the harassment? (Be sure to make it absolutely clear that the employee was not required to take any action other than reporting the behavior to you.) Has the employee spoken to anyone else about this issue either inside or outside the company? If so, who and when, and what was the other person's response? Did the employee keep any written document logs or diaries of the behavior or the incident that was considered harassing? For example, are there any expense reports, incident reports, or memos that were maintained to prove what occurred? Does the employee know of any other coworkers who have been exposed to the same or similar behavior by the alleged harasser or anyone else in the company? Ask the complainant if he or she is aware of the company's zero tolerance sexual harassment policy. Get relevant information about how and when the complainant became aware of your company policy.
Closing the Interview
When you are done, thank the employee for raising these issues and make sure that the employee understands that you are going to take his or her complaint seriously. Advise the employee that he or she will be kept up-to-date on the investigation as it unfolds. Instruct the employee to keep the information provided to you confidential and to avoid sharing it with any coworker or anyone outside the company. Let the employee know that the company will make a final decision regarding the best way to resolve the complaint, but the employee's input is valuable and necesary, and it will be considered in any remedial steps that will be taken. Encourage the employee making the complaint to write down his or her side of the story. Indeed, the best practice is to require a written complaint. Suggest this step, but do not require it of the employee. This statement should consist of a list of all the employee's concerns and complaints, the relevant facts and dates the employee believes supports his or her concerns, and the names of the people that the employee suggests may have information relevant to the investigation.
This is a general outline of the areas and issues to cover during your initial investigation. This part of the investigation is extremely important, as the employee must leave the interview believing that his or her concerns are being taken seriously and will be investigated objectively. If you can accomplish these goals, you are well on your way to successfully resolving the complaint.
Lary Zucker is a member of Spector Gadon & Rosen, P.C., and counsel to the New Jersey Amusement Association. He can be reached at (856) 778-8100. Nancy Abrams is a member of the Employment Law department of Spector Gadon & Rosen P.C. She can be reached at (215) 241-8894.