Recently, when advising a client who was investigating a complaint of sexual harassment, I had the opportunity to revisit the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (issued on June 18, 1999). The information contained in the Enforcement Guidance provides a useful tool for employers engaging in workplace investigations.
The first steps to be taken, when a complaint is made, are (1) assure that the person making the complaint is protected from any continuing possible adverse action and (2) selecting the right person to investigate. The investigator should be one who can objectively gather and consider the relevant facts without any subtle operational or managerial pressures being applied to the assigned tasks. The investigator should be experienced in the skills required for interviewing witnesses and evaluating credibility.
Each investigation must be tailored to the particular facts. The complainant, the alleged harasser, and third parties should be interviewed. Other than the questions of who, what, where, when, and how did the harassment occur, the person should be asked what was the response to the described actions, are there any others to collaborate, and are there any notes, documents, or physical evidence regarding the incident. Most advisedly, the investigato should refrain from offering his or her opinion.
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