Ten Steps to Follow When Investigating a Sexual Harassment Complaint
Stuart H. Brody and Wm. Lee Kinnally, Jr.

Stuart H. Brody is Senior Counsel to the Labor and Employment Group at Gibuey, Anthony & Flaherty, a New York law firm. Wm. Lee Kinnally, Jr. heads Gibuey, Anthony & Flaherty's litigation department.

Although sexual harassment has become one of the most contentious issues of the modern workplace, employers need not be helpless bystanders to the problem. For instance, a well publicized policy and periodic employee training can do much to minimize both the occurrence of sexual harassment and an employer's liability.

But what happens when you get a complaint? Responding to a sexual harassment charge by an employee is loaded with pitfalls. Here are ten rules to guide you.

1. Make a prompt investigation.
Case law has not defined "prompt" in terms of time, but courts have left no doubt that it means as soon as practicable. Prompt means days, not weeks. The key is to leave no room for the complaining party to believe, or a judge to conclude, that there was foot-dragging. An investigator needs to be appointed quickly. Therefore, someone should be designated, in advance of a complaint, to conduct an investigation if called for.

2. The investigator should be a person with the experience, temperament and stature to conduct the investigation.
This means someone whose job normally entails interviewing employees, most frequently a personnel officer, and who is somewhat independent of the day-to-day operations of the department involved. Having an investigator of the same sex as the complaining party (or two available investigators—one male and one female) facilitates the difficult process of obtaining reliable and complete evidence.

If a personnel officer is viewed as too close to the situation, or otherwise incapable of creating trust by the parties, consider asking someone outside the normal chain of command, such as the head of an unrelated department. But remember, do not delay in commencing the investigation.

You should discuss with your attorney whether he or she should perform the investigation. An investigation conducted by an attorney may be shielded from discovery or subpoena in subsequent agency or court proceedings. This may be a significant consideration. For instance, if the investigation yields a finding of sexual harassment and the complaining party sues because she is unsatisfied with the action, if any, taken by the employer against the harasser, she will surely seek to have the investigation report introduced as an admission against the employer. An admission that sexual harassment occurred does not automatically establish liability. However, admissions can have a powerful effect on propelling complaining employees to litigation and influencing juries. At the very least, the investigator's report should be reviewed by a lawyer specializing in employment law, not only to minimize the problem of damaging admissions, but also to correct poor drafting and eliminate unnecessary findings.
Witnesses must be assured of confidentiality and must understand there will be no retaliation against them by anyone.

3. Provide all witnesses with assurances of confidentiality and freedom from retaliation.
Such assurances are given to witnesses to encourage their cooperation with the investigation. But the investigator must also be mindful that breaches of confidentiality can expose the employer to suit for defamation by the alleged harasser.
Obviously, in the course of the investigation it will be necessary for the investigator to communicate to witnesses the substance of the charges involved. An investigator has a"privilege" to communicate such obviously derogatory
| material, but only to the extent necessary to legitimately further the investigation.

4. Make a complete record of every aspect of the investigation.
This means not only recording the time, date, location and duration of witness interviews, but also what questions
were asked and answered and those that were not answered. A complete record of responses is essential. Witness responses, especially quotes, should be repeated to witnesses to ensure accuracy.

Although it is often thought useful to have a witness sign his or her statement to protect against subsequent
variation, we do not recommend this. A request for signaWre injects an intimidating element into the investigation
and is invariably accompanied by a counter request for a copy of the statement, which increases the possibility that
defamatory statements will be disseminated.

5. Conduct the interview in a private place away from the normal flow of business, and off-duty if the complaining party is concerned about a supervisor noticing his or her absence.

Witnesses must be assured of confidentiality and must understand there will be no retaliation against them by anyone. They should be encouraged to submit any further information that occurs to them and should be assured that opportunities exist to update information at any time.

6. In communicating the charges to the alleged harasser and other witnesses, be only as specific as necessary to get his version.
You need to protect against unnecessary dissemination of the charges.
Skill is required to strike a balance between offering too much detail and not enough. If the sexual harassment charges are given verbatim, the risk is that the alleged harasser will simply deny the accusations. If they are too sketchy (such as, "Can you think of anything you ever said that was offensive?"), a blanket denial is also likely. A middle course will result in more specific responses, such as identifying the time, date, and location of an alleged remark and referencing it to the context of conversation that surrounded it.

But remember, witnesses should be afforded only so much information as they need to give their account of an occurrence. You need to protect against unnecessary dissemination of the charges.

7. When the investigation is completed, issue a report that is clearly written with specific findings and recommendations of remedial steps.
This is the most difficult part of the investigator's job. It is no secret that one key purpose of the investigator's report is to show a court that the employer kept its own house in order. An effective report can avoid liability; a poor one can assure it. An employer may avoid liability for a supervisor's conduct, even if it imposes inappropriately light discipline or no discipline at all, provided that the investigation was conducted in good faith and that the harassment does not recur. To be in good faith, however, there must be a reasonable attempt to resolve credibility disputes and to determine whether the conduct was unwelcome and sufficiently serious to constitute sexual harassment.

Conclusions must be carefully framed. As indicated earlier, the investigator must be aware that the report may be subsequently disclosed, and that the admissions in the report will be brought to light. If the alleged harasser is to be discharged or suspended for his or her behavior, then an admission that such conduct was committed is appropriate and expected. The difficulty for the investigator occurs when sexual harassment is found, but remedial action short of discharge is recommended. For instance, a finding of sexual harassment with a recommendation for written warning of the harasser leaves the employer open to the charge that the penalty was inappropriate and the investigation was not in good faith. Accordingly, in cases where less severe discipline is imposed, it is useful to avoid stating a legal conclusion that sexual harassment occurred. Rather, the behavior should be characterized as "inappropriate," "improper," "disparaging," "having no place in a work environment," and so forth.
Even if an attorney does not conduct the investigation, the preparation of the report should be under the attorney's supervision. At the very least, the attorney should approve the final document.

8. If you find sexual harassment was committed, you must take some action.
Although oral warnings may be appropriate in minor cases, you cannot simply tell the harasser to refrain from the behavior. Oral warnings tend to be associated with a lack of resolve on the employer's part. It must be made clear through written warnings, suspension, transfer, demotion, delays in salary increases or other adverse action that the behavior will not be tolerated, and that any further occurrences may lead to termination. In a serious case, particu larly one where conduct is repeated despite timely warnings, discharge must be considered.

9. Communicate results to both parties.
Both the complaining party and the alleged harasser must be told whether the investigation reached a conclusion that sexual harassment occurred (although it may be desirable to characterize the behavior in other terms—see item seven above). They should also be told what discipline or other steps will be taken against the harasser, if any, and what steps generally are planned to ensure that occurrences of sexual harassment do not recur.

There is no reason, however, to show the investigator's report to the complaining party and the alleged harasser. The report is an internal document and should only be viewed by those responsible for imposing discipline and implementing recommendations of the report. Nor is the investigator obligated to explain the thought processes leading to the decision or the specific credibility findings made. Although there may be a natural tendency to submit to such questions, the investigator, or other party explaining the results, should avoid doing so to minimize unnecessary dissemination (or distortion) of the investigative work product.

10. Monitor effectiveness of discipline imposed and other ameliorative steps taken.
Once sexual harassment has been charged, an employer must be especially sensitive to its recurrence, not only with respect to the workplace as a whole, but especially between the complaining party and the harasser. Courts will take a dim view of the effectiveness of the employer's response to the initial allegations if the harassment recurs. For some courts, recurrence is proof of the inadequacy of the employer's response and hence the basis of liability for the sexual harassment. Mediation or counseling should be considered to reestablish a working relationship between the two parties. And, if not already conducted, training should be done so that all employees will have a better appreciation of the right to work in an environment free from harassment.

In some cases, the complaining party may be so dispirited that the alleged harasser was not discharged that she cannot effectively continue her work, or may actually refuse to work, thus raising the prospect of insubordination. Taking action in such cases is a very delicate matter and should not be done without the benefit of employment counsel.

Sexual harassment can be a pernicious element in any workplace. "Can be" is the key phrase. With the appropriate sensitivity and adherence to the type of sexual harassment policy we have outlined here, the potentially devastating effects of sexual harassment can be forestalled and remedial steps toward repairing damage implemented.