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November 03, 2020

6 Tips For Investigating a Sexual Harassment Complaint

Here’s the scenario: A female employee at your firm comes to HR with a complaint about a partner’s behavior. A prompt, effective response will be key to protecting and retaining employees, safeguarding your company’s reputation, and avoiding a lawsuit. This article covers important points to keep in mind as your firm navigates this delicate situation.


1. Respond swiftly.

A prompt response demonstrates that your company cares about its employees and mitigates further harm caused by the alleged harasser. Take all complaints seriously, and let both parties know that an investigation will be conducted. In the meantime, supervisors and HR should take steps to make sure the complainant is comfortable in the workplace--this may mean moving his or her office or placing one of the parties on paid leave. Assure the complainant that there will be no retaliation against her, and make sure to guard against any potentially retaliatory behavior. 


2. Determine whether to launch an internal or external investigation.

In most cases, your firm should immediately launch an internal investigation, likely conducted by HR. For more severe offenses, or in cases where harassment is pervasive or repeated, your firm may wish to engage an external investigator instead. An external investigator brings an objective view to the situation and is better able to uncover any organization-wide issues. It also demonstrates your firm’s commitment to maintaining a respectful work environment.

Regardless of whether you’re conducting an internal or external investigation, make sure HR is fully involved. They can provide information about your policies and disciplinary processes and how issues like this have been addressed in the past. 


3. Take care to preserve and protect evidence.

The investigation will involve gathering evidence, including interviewing witnesses and reviewing any communications. The complainant and the accused should retain all emails, texts, and similar communications that pertain to the alleged incident--deleting incriminatory emails can be damaging to both the accused and the organization. Ask both parties to name any witnesses that could corroborate or undercut the accusation.

The investigator will need to catalog the evidence you collect and take care to safeguard it. Keep all investigatory materials in a file separate from the employees’ personnel files. Be aware that although at this point, evidence may be confidential, that can quickly change. Assume that all contents of an investigation could find their way into the public eye. 


4. Protect confidentiality, to the extent that you can. 

The investigation should be kept as confidential as possible to protect the rights and reputation of the accuser and the accused. However, complainants should be advised that confidentiality cannot be promised, especially if a criminal investigation takes place. 

You can protect potentially damaging evidence from being released through the attorney-client privilege or the work product doctrine. Bringing in an outside law firm to conduct the investigation is the best way to invoke these, but it is not a bulletproof approach. If a government agency demands access to the evidence, you waive the privilege. And if there is widespread public knowledge of the wrongdoing, for example, you may wish to release the report to the public. 


5. Guard against defamation.

The investigator and others involved in the investigation must ensure no defamatory statements are made about any participants in the investigation, including both the accuser and the accused. Any inaccurate public or even internal statements about the accuser or the accused can be grounds for defamation, libel, or slander. You can minimize the risk of defamation by keeping your report and information confidential except on an as-needed basis. Avoid making any preliminary statements that might turn out to be inaccurate.


6. Prevent retaliation at all costs.

Retaliation often causes more problems for a company than the complained-of conduct, because it can be easier to prove. Retaliation can also take many forms, including additional workload, missed bonuses or promotions, negative remarks, or giving someone the cold shoulder. Make sure to protect the complainant from all forms of retaliation. 


Bonus Tip: Be aware of the investigation’s effects on employee morale and company reputation.

In some cases, evidence surfaced by an investigation can point to widespread issues: a culture of misogyny, a tolerance for sexist language, or serial harassment. In these cases, the employee population is likely aware of the problem and morale has almost certainly suffered. In more extreme cases or in situations in which the allegations have become public, your firm may have developed a reputation for sexism. Engaging an external investigator can mitigate the harm to your reputation and begin to restore employee trust. If the damage is severe, you may also wish to release the investigation’s findings to the public. Once the investigation has concluded, you will need to begin the work of repairing employee morale and perhaps public confidence.


Prepare your firm: Order AltaClaro's on-demand master class, Sexual Harassment Prevention and Sensitivity (2.0 CLEs)


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