E. Jason Tremblay of Arnstein & Lehr LLP in Chicago put together an article in the ABA’s Business Law Today on how to limit a company’s exposure by Properly Investigating Complaints of Harassment. jason points out that an ineffective investigation can turn simple workplace humor into an expensive harrassment of retaliation complaint.
He inserts a word of caution that an investigation is not priveleged unless it is conducted through legal counsel. You need to take care that an investigation does not produce information that would be admissions adverse the company. Just gather facts.
Jason lays out these key steps that you can read in the articel in more detail:
- Importance of training. Avoid the problems before they start.The better trained the company’s managers and supervisors are to identify personnel problems in the workplace, the more quickly and effectively the employer can take prompt and appropriate action to resolve the workplace conflict.
- Start the investigation. Have a designated, impartial investigator instead of the employee’s manager.
- Interview the alleged victim. When interviewing the alleged victim, there are a number of appropriate questions to ask in addition to the standard “who, what, when, where, and how” of the alleged harassment. Here are some examples of additional interview questions to ask the employee: How did you react? What response did you make when the incident occurred or afterwards? How did the harassment affect you? How has the harassment affected your job? Are there any persons with relevant information? Did the person who harassed you harass anyone else? Do you know whether anyone else complained about harassment by that person? Can you continue to work in your worksite?
- Interview the alleged harrassser. It is prudent to give the alleged harasser an opportunity to respond to the allegations.
- Interview other witnesses. What did you see or hear? When did the incident occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace. What did the complainant tell you? Has the conduct occurred in the past? Do you know of any other relevant information? Are there any other persons who have relevant information?
- Take prompt, remedial action. Employres have an obligation to treat similar complaints of harassment in a similar fashion.
- Document the investigation. Make sure your notes are accurate and are taken contemporaneously. Identify who drafted the notes and when. make sure they are legible. Confirm notes with the interviewees for accuracy.