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Sexual harassment investigations are among the most sensitive that a company must conduct. Allegations of sexual harassment must be assessed, investigated and resolved as soon as possible to ensure the behavior doesn’t continue.
Failure to conduct a swift, fair investigation could result in more and escalated incidents (at best) and a lawsuit, increased employee turnover, and a reputation as a company that allows harassment to run rampant (at worst).
A no-tolerance sexual harassment policy shows employees that you care about their well-being and creates an overall more ethical workplace culture, which often fosters happier employees who are more creative, innovative, and productive.
In 2021, video game company Activision Blizzard faced dropping share prices, walk-outs from staff, calls for the CEO’s resignation, and a federal SEC investigation. Why? CEO Bobby Kotick allegedly hid employee reports of sexual harassment and assault from shareholders and the company’s board of directors, allowing a company culture of harassment to flourish.
Don’t let your organization and employees suffer the same fate. We’ve gathered these tips to ensure your sexual harassment investigations are successful, as well as ways to prevent this behavior in the future.
For a full look at workplace sexual harassment, check out this video:
As soon as you receive a complaint of sexual harassment, report it to the human resources department and/or to the department or person responsible for enforcing the company’s anti-harassment policies. They need to know if an internal policy has been breached.
They can also begin working with the complainant to make them feel safe during the investigation, such as moving them to a new work station or changing their work hours.
Be sure to initiate an investigation into sexual harassment allegations as quickly as possible. This is a very serious accusation, and taking too long to respond puts the victim (and other employees) in danger of further abuse.
Failing to address the situation in a timely fashion puts your company at risk of a lawsuit or fines.
Does your company have a mechanism for reporting sexual harassment?
Our free sexual harassment complaint form template is a good place to start.Get the Template
As an employer, you’re obligated to provide a safe, equal work experience to all employees. If the victim feels in danger and/or like their work has suffered because of the investigation delay, they could file a complaint with the EEOC.
To ensure you never miss a complaint and can get started investigating right away, look for a case management system that integrates with your intake mechanisms. i-Sight captures reports through your hotline, webform, and other mechanisms, and instantly creates a case file using the collected data, saving time and effort.
In your first meeting with the complainant, express that you’re taking their complaint seriously. Reflect this in your actions by acting quickly and keeping all communications professional and supportive.
To protect both the complainant and the alleged harasser, keep all details of the case confidential until a resolution is reached. Be discreet about the details of the allegation and the identities of the complainant and the subject. Only share information about the case on a need-to-know basis.
Next to confidentiality, avoiding retaliation should be your top priority.
Explain your company’s anti-retaliation policy to every person you speak to in the investigation (victim, alleged harasser, witnesses) and encourage them to report any retaliatory behavior they experience.
You might want to separate the involved parties until the investigation is resolved. However, this could be perceived as retaliation (by the victim) or disciplinary action (by the accused). To avoid a lawsuit and protect your employees, consider these options:
- Ask the victim if and how they would like to be separated from the accused. This could include different work hours, moving work stations, or taking paid leave. Don’t force anything on them.
- Place the accused person on paid administrative leave for the duration of the investigation. It’s best if they do so voluntarily.
Before you start the investigation, gather all the documents you need, including:
- Your company’s code of conduct and related policy documents (e.g. harassment, anti-retaliation, etc.)
- Employee files for the victim, accused, and witnesses
- A copy of the allegation
- Supporting documents
Next, choose your investigation team. To reduce bias, assign investigators who don’t have a relationship with the complaining employee, the subject of the allegation, or any witnesses.
This might be difficult, especially in a smaller organization. If you can’t find unbiased investigators, consider using an external investigation team to keep things fair.
Then, lay out your investigation plan. To start, ask yourself:
- What tasks will need to be completed?
- Who should do each task?
- What is our overall timeline and when should each task be completed by?
- What is the goal of this investigation?
Need help writing an investigation plan?
Make sure you don’t miss any key steps or details by using our free template.Get the Template
When scheduling interviews with the victim, alleged harasser, and witnesses, make sure you’ll have access to a private place away from other employees and management. This could be an empty board room or a neutral party’s office.
If you’re conducting the interviews virtually, ask the interviewee to set up in a quiet distraction-free area, with a closed door if possible. Promise that you will do the same.
When conducting investigation interviews, have two investigators present, if possible. One can ask the questions while the other takes notes or records the interviews for later transcription. To make the interviewees more comfortable, try to use a mixed-gender team.
Do your best to keep the details of the investigation confidential. However, don’t promise confidentiality to any interviewees. You might have to disclose details of an incident, including to the accused person, in order for them to speak about whether or not they were involved.
After each interview, assess the credibility of each interviewee by asking:
- Does this person have a reason to lie?
- Does their story match or contradict with the other interviewees’?
- Have they been involved in a similar incident before?
Document your assessment in your notes. A case management system like i-Sight keeps all your case information, including notes and evidence files, in one centralized location so you stay organized during your investigation and don’t miss any key details.
Want to dive deeper into this topic?
Check out our free webinar “Investigating Sexual Harassment” from employment attorney Allison West.Watch the Webinar
When scheduling interviews, put the complainant first, and make sure it’s as soon as possible after the allegation. This reinforces the importance of the issue and reassures them that the company is taking the allegation seriously.
As mentioned above, acknowledge the sensitivity of the allegation at the start of the interview. Reassure the complainant that the company is committed to getting to the truth and preventing more occurrences.
During the interview, don’t just ask about details of the incident. Find out how the alleged harassment has affected the complainant as well. They might cry, shut down, or become angry.
Offer support without becoming biased. Even a simple “I’m sorry you experienced that” can help them feel heard and supported. If they are really struggling, direct them to mental health resources (such as an Employee Assistance Plan).
At the end of the interview, ask the complainant what outcome they would like to see.
- Would they like to move departments?
- Do they want the harasser to be terminated?
- Do they think the harasser should attend sensitivity training?
“If that outcome is not available, explain this and discuss what a successful resolution might otherwise look like from the complainant’s or organization’s perspective,” suggests the Victorian Equal Opportunity & Human Rights Commission.
Interviewing the victim comes with special challenges.
Download our free cheat sheet “8 Tips for Interviewing the Reporter” to learn how to do it properly.Get the Cheat Sheet
After interviewing the complainant, move on to employee witnesses.
Try to get the witness to provide the identities of the accused and complainant before you disclose them. This shows that they have real information about the incident that isn’t swayed by one party or the other.
Cover the “who, what, where, when and how” questions first to establish a clear sequence of events. Ask for specific details of location, time, and conversations.
Then, ask for any other information they can provide that might help you find out what happened. Here are some examples:
- Did you see [the complainant] immediately after the alleged incident? What was their expression?
- Did [the complainant] tell you about this incident or did you see/hear it first-hand? What did they tell you, when, and where?
- Do you know if this was a singular incident or recurring?
- Is there anyone else who might have information about this incident?
Next, interview the accused harasser’s supervisor. Ask about recent discipline problems, behavior patterns, or other clues that could corroborate the accusation. For instance, does this person have a history of making dirty jokes at work? Do they have a history of sexual harassment allegations?
Request any documentation that is relevant to the investigation, such as emails and time sheets. These can help you piece together the employee’s whereabouts during the time of the incident, their behavior towards the complainant, and more.
When interviewing the alleged harasser, remain as objective and unbiased as possible. You are investigating to find out the truth, not prove their guilt or innocence.
Be sensitive to the stressful nature of the situation and the repercussions of the investigation for the subject. Just like the victim, they need emotional support. Remain calm, professional, and understanding in your tone.
To start, assess the reaction of the subject to the complaint. Are they surprised, angry, resigned? While their emotional reaction isn’t a foolproof way to uncover the truth, it can be very helpful.
For instance, if the subject is surprised, they could have made a harassing comment without realizing that it hurt the victim. Anger could indicate either that the allegation is false or the subject is mad they got caught. If they act resigned, they might not want to reveal details that could implicate themselves.
Next, establish the relationship between the subject of the allegation and the complainant. For example, is the accused the complainant’s supervisor? Is or was there a romantic relationship between the two?
Get more details of the relationship by asking how long the two parties have known one another and whether they socialize outside of or at work. Did they know each other before working together? Do they have a purely professional connection or is there also a social aspect?
If the subject denies the allegation, ask if they can think of a reason that the complainant would make the complaint. Perhaps the two employees have a strained relationship and the “victim” wants to punish the subject. Or, the subject might not see their behavior as harassment when the victim feels that it was.
In order to ensure a fast, fair resolution, you need to manage the investigation wisely.
First and most importantly, be ready to adapt your tasks, goals, and timeline as the investigation changes.
New witnesses or pieces of evidence could pop up that throw a wrench in the works of your original investigation plan. Have backup plans and the willingness to be flexible to ensure the investigation doesn’t go off the rails completely.
Next, keep track of your team’s tasks. This ensures the sexual harassment investigation keeps moving along. Ask:
- Is one investigator chronically behind their deadlines?
- Are you stuck on a certain stage of the investigation (e.g. interviews, document review, etc.)?
- Is the team completing the most urgent tasks first?
Strong investigation management can prevent lawsuits and future incidents.
To ensure your process is successful, download our free investigation management eBook with tips, tricks, and best practices.Get the eBook
To make investigation management easier, consider using a case management system like i-Sight. Managers can see their entire team’s upcoming and completed tasks so you stay on track. The whole team can also collaborate on the secure, centralized platform so everyone stays on the same page without sacrificing data security.
To start the evidence evaluation phase of the investigation, gather everything you’ve collected, including interviews, credibility assessments, and documentation.
If you discover information gaps, re-interview witnesses, the victim, and the subject. You might also need subsequent interviews to probe further where you think there is more to learn.
Using the evidence you’ve gathered, come to a conclusion about what happened and whether the subject violated your anti-harassment policy or not. Document your findings, as well as how you arrived at them, in a detailed investigation report.
Not sure what to include in an investigation report?
Download our free template to ensure yours doesn’t leave out any key details so your reporting is consistent and compliant.Get the Template
At the end of your report, recommend corrective action if sexual harassment occurred. Ensure the corrective action can’t be seen as punitive to the victim, unreasonable in severity, or retaliatory. It should also be consistent with discipline imposed for similar misconduct in the past.
Taking these precautions protects all parties involved, while reducing your company’s risk of a lawsuit.
After you’ve reached a resolution, provide the complainant and the subject of the allegation with a copy of your findings and final decision. Contact them to answer any questions or provide information they may need.
In addition, ask Human Resources to follow up with the victim every few weeks after the investigation wraps. They might require additional support, especially if they experienced severe trauma.
A company is legally responsible for conducting a prompt, fair and thorough investigation sexual harassment allegations in the workplace. Failure to do this adequately can result in lawsuits, fines, and erosion of employee trust.
Frequent harassment burns out your investigators, creates a culture of fear among employees, and demonstrates to victims that you don’t take their safety seriously. This, in turn, can lead to poor employee retention, lawsuits, and a bad corporate reputation.
Preventing sexual harassment, rather than just responding to incidents after they happen, can save your organization risk, money, and time, and further protect your workforce.
But how do you know where to focus your preventive efforts?
Look at your incident data.
To find your areas of risk, try to identify patterns and “hot spots.” Analyze categories including:
- Incident type
- Accused person
- Location/Region (if you have more than one)
Data analysis and reporting like this can take a long time, and you could still miss key insights. To make the process easier, i-Sight’s unique reporting tool turns historic case data into heat maps, graphs, and charts in seconds so you can get started on your preventive action plan right away. Learn more about the tool here.
The easiest way to prevent sexual harassment in your organization is by changing the company culture. Build ethical behavior into your everyday processes and internal policies, emphasizing to employees that harassment just doesn’t fit into your organization.
First, require employees to take part in annual harassment training. Your module should include real-world examples of harassing behavior (including sexual harassment) and why they are unacceptable. Include information on where and how to report harassment.
Include a lesson on bystander training in your program. Teach employees how to recognize harassment, what to say to a harasser, and how to offer support to the victim.
Another way to change the company culture is to write a code of ethics. This document outlines your company’s core values and ethical standards to guide employees’ behavior in the workplace. Sharing the organization’s commitment to respect and professionalism shows would-be harassers that that behavior won’t be tolerated.
Ready to write your own code of ethics?
Download our free template to use as a guide as you draft your policy.Get the Template
When conducting a sexual harassment investigation, don’t just go through the motions. A thorough investigation and quick resolution not only protects the victim, but can also help you avoid further harassment incidents, lawsuits, fines, and a damaged reputation.