Sexual Harassment Investigation
Participating in an Investigation
All employees have a responsibility to cooperate fully with the investigation of a sexual harassment complaint. Investigations will vary from case to case, depending on a variety of circumstances. While not very investigation will follow the same format, in every case you need to keep certain things in mind.
Keep It Confidential
First, whether you are the accused employee, the complaining one, or merely a potential witness, bear in mind that confidentiality is crucial. Two people have their reputations on the line, and you may or may not know all the facts. In the typical situation, the employer will keep the information it gathers as confidential as possible, consistent with state and federal laws, and both the accused and the complainant will have a chance to present their cases.
Don’t Be Afraid To Cooperate
There can be no retaliation against anyone for complaining about sexual harassment at work, for helping someone else complain, or for providing information regarding a complaint. The law protects employees who participate in any way in administrative complaints, and employee policies protect employees who honestly participate in in-house investigations. If you are afraid to cooperate, you should be very frank about your concerns when talking to the employer’s investigator.
Answer the questions completely.
As the Complainant:
If you are making the complaint, the investigator will need to know all the details, unpleasant though they will be to recount. The investigator has a duty to be fair to everyone involved and needs as much information as possible. Be prepared to give the following information during the investigation of a sexual harassment claim:
- The names of everyone who might have seen or heard about the offensive conduct;
- The names of everyone who may have had a similar experience with the alleged harasser;
- A chronology -- when and where each incident occurred;
- The reasons why you did not report the incidents earlier (if you have delayed at all); and
- Your thoughts on what the employer should do to correct the problem and maintain a harassment-free environment.
The investigator man need to talk with you several times while other employees are questioned and information is gathered.
As the Accused
If you are the person accused of sexual harassment, you must remember that you have a duty to cooperate in the investigation, regardless of whether you believe the allegations to be true or false. You will be expected to answer questions completely and honestly.
You may be asked not to communicate with certain individuals during the course of the sexual harassment investigation. You must remember that you are not to retaliate against the person who make the complaint or against anyone who participates in any way in the investigation. You must treat them in the same fair and even-handed manner you would if no complaint had ever been raised. Failure to abide by these rules may result in discipline against you, even if the investigation shows that no sexual harassment occurred. Indeed, retaliation against a complainant may violate the law even if the underlying complaint of harassment cannot be substantiated.
You should expect to be asked to confirm or deny each of the specific allegations against you. It is possible that the allegations are gross exaggerations or downright lies, but it is important to remain calm and keep your responses factual. You may be asked to provide any facts that might explain why the complainant would be motivated to exaggerate or fabricate the charges. The investigator might need to talk to you several times while other employees are questioned and information is gathered.
As a Potential Witness
You may be asked to provide details concerning alleged sexual harassment between other employees. You have a duty to respond truthfully to the questions concerning these allegations. The natural tendency after an interview by an investigator is to share with co-workers the more interesting details. Remember that the employer’s policy is to keep the interviews as confidential as possible. Gossip about allegations of sexual misconduct, can fairly damage the reputation of co-workers.
Keep the Lines of Communication Open
The object of the employer’s investigation is to find out what happened. The investigator may conclude that workplace sexual harassment occurred, that it did not occur, or that it is impossible to tell what really happened.
As the complainant or as the accused, you have the right to know in general terms what the organizations conclusion is, and you should ask if you are not told. Do not assume that the matter is settled until you have been told so directly. If you are the complaining party, it is important to promptly report any new incidents of sexual harassment that occur after your first talk with the investigator, and to tell the investigator about anything you may have forgotten or overlooked. Do not be discouraged by the fact that the employer takes time to act, and bear in mind that the more information you provide, the better chance there is for decisive action by the employer.
If you are accused, do not be discouraged if the employer’s investigation fails to completely clear your name. It is not uncommon to conclude that there is no way to tell what really happened. Remember, sexual harassment complaints often involve one-on-one situations where it is difficult to determine the truth. More over, two people can have totally different perceptions of the same incident. The best you can do in such a situation is to avoid further situations where your words or conduct can be used as evidence of sexual harassment.
Expect Adequate Remedial Action
If the employer finds that sexual harassment did occur (or even some inappropriate action falling short of sexual harassment), expect the employer to take some remedial action. A variety of disciplinary measures for sexual harassment may be used, including:
- An oral or written warning;
- Deferral of a raise or promotion;
- Demotion;
- Suspension; or
- Discharge
The action taken in any particular case is within the organizations discretion. The precise nature of the discipline is often kept confidential to ensure that the privacy of individuals is protected. One aim of the action is to deter any future acts of harassment. If you, as the complaining party, fell that the harasser is retaliating against you for complaining or continuing to harass you, you should immediately use the employer’s procedures to report the conduct so that the employer can take further action as appropriate.
If the employer does not have enough evidence to reach a conclusion about harassment, it still might take other actions, such as separating the parties, holding training sessions on preventing sexual harassment, or having the affected employees certify that they have read again and fully understand the employer’s policy against sexual harassment.
Note: Many organizations forbid conduct that falls short of unlawful sexual harassment and do impose discipline for conduct that comes to their attention as the result of a sexual harassment complaint, even if the conduct does not violate the law or the organizations harassment policy. For example, a manager who makes sexual advances to subordinates might be disciplined for exercising poor judgment, even if the sexual advances were welcomed; and an employee who engages in a single incident of offensive gender-based conduct might be disciplined for inappropriate conduct, even if the incident was not severe enough to create a hostile environment. The fact that an employer imposes discipline in response to a complaint of sexual harassment is not admission, therefore, that any unlawful harassment has occurred.
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