Evaluate the Facts and Form Conclusions
In sexual harassment investigations the investigator will be called upon to evaluate the facts obtained and reach a conclusion. The investigator will be required to assess the credibility of the complainant, the alleged harasser, and the witnesses interviewed just in case there is a false sexual harassment claim. In assessing credibility, the investigator should consider the interviewee's demeanor, the consistency of the interviewee's story, the plausibility of the interviewee's version of events, and the presence of other factors which might make the interviewee biased. The investigator should document conclusions regarding credibility and state the basis for those conclusions.
The investigator should document his or her conclusion regarding whether a violation of company policy took place. The conclusion should not be framed in terms of whether a hostile work environment was created. Hostile work environment is a legal conclusion which hinges on a variety of considerations. A determination regarding whether a hostile work environment existed should be made by the appropriate fact finder in a legal proceeding.
All documents reviewed during or created in connection with the investigation should be retained.
Take Remedial Action and Impose Discipline if Necessary
If the investigator concludes that the harassment occurred, the employer must take prompt and effective remedial action. Action which does not end the discrimination harassment will probably not be deemed sufficient. Further, even if the harassment has already ended, the employer must take action against the employer. Courts have held that some form of discipline must be imposed on the harasser. Discipline is intended to provide a deterrent to any future harassing conduct.
The discipline imposed should be commensurate with the severity of the harassing conduct. Possible actions to take at the conclusion of the investigation include requiring employees to undergo sexual harassment training, requiring the harasser to apologize to the complainant, issuing a written warning, requiring the harasser to undergo counseling, suspending the harasser, transferring or reassigning the harasser, demoting the harasser, and discharging the harasser.
Some employers question the complainant regarding the action the complainant would like to see taken. It is important for employers to realize, however, that they have an independent duty to determine the appropriate level of discipline to be imposed.
Handle all Sexual Harassment Claims Consistently
Increasingly, employees accused of harassment are asserting discrimination claims based on the manner in which the investigation was conducted or the severity of the disciplinary action imposed. For that reason, it is important for employers to be consistent in the manner in which they investigate harassment complaints. Further, employers should aim to impose discipline which corresponds to the level of severity of the conduct involved. If the employer deviates from its usual practice in any way, it should be prepared to explain the reason behind the deviation.
Follow Up with the Claimant
The employer must follow up with the complainant to ensure that no further harassing conduct and no acts of retaliation have taken place. It is recommended that the employer follow up at least two weeks after taking action, one month after taking action, two months after taking action, six months after taking action, and then one year after taking action. If the investigation of the complaint cannot be completed within one day, then the employer should follow up with the complainant during the investigation to ensure that he or she is not being retaliated against or subjected to continuing acts of harassment. Following up with the employee is also advisable even if the investigation does not confirm the complainant's allegations.