How should an employer conduct a prompt, thorough, and fair harassment investigation?

Start the Investigation

This is the next installment in our harassment series. The third must-have is an investigation that is prompt, thorough and fair. By prompt, I mean as soon as reasonably possible. Any delay needs a really good excuse plus reasonable, workable steps to stop further harm.

The moment you find out there’s a problem, start the investigation. Now starting it right away does not mean deciding right away who is guilty or who is not. Or who’s getting fired or who is not. Almost never. It does mean getting the complainant’s full story and deciding on interim measures, like separating the two while you investigate.

Sometimes the investigation does not start right away because there are good reasons why. But such excuses for delay are rare. There are a couple I might believe. For instance, you have only one HR person. She’s on her honeymoon in the Cayman Islands with her phone off. You have no in-house lawyer. And your outside lawyer only does corporate and tax stuff. When she comes back, she’s going to do it right away. Well, that might work for me. Or say an employee comes in 20 minutes before the plant shuts down for all of July. And everyone else has already left for vacation.

Now, I am not going to buy lots of excuses for delay. One might be that you were too busy with year-end closing, I don’t know. I mean, really busy, not just busy.

How about we wanted to wait and see if it would get worse. That’s bad. And, of course, how about the dog ate my homework?

How about thorough? You start by interviewing the complainant and getting her whole story: names, places, dates, times, context. Write that down. Then you talk to the accused. If he admits it, that may be the end of the investigation. But be sure it is. Ask if he did it to others too.

The next thing you have to do is interview every witness both of them name, one at a time. Start with the accuser’s witnesses. Do not start out by saying to one of the accused’s witnesses, “Mary Sue accused the supervisor of grabbing her rear. Did you see it?” The word’s gonna get around, and everyone will think the supervisor’s a goner. Instead, say to her, “Hey, Jane, how do people get along in your department?” And, “Has anyone said anything or done anything inappropriate? Who have you seen talking to each other lately?” Or whatever questions you think of.

You’ll be surprised how often people say, ‘I don’t know anything, but talk to Tom. He sits right next to her.’ Great, interview Tom. And the next person. Then the third tier. And so on. Until you hear nothing new or no more names.

Depending on your case, you may need to look at emails or texts or phone messages. You might also need to look at other personnel files to see about other incidents. Then, you’ll have to organize all your notes and your write-up. Next step, have someone you trust look at your written product, your investigation writeup. You can ask another HR person. Or in-house counsel. Or outside counsel who knows employment law. Don’t ask your pal George who’s an aviation lawyer. Or even your general business attorney. An expert needs a second look too. Only the Pope is infallible.

Now last but definitely not least is fair. If the alleged harasser is some clown you would not hire a second time, you may need to pull yourself back a bit from thinking, “She must be guilty.” It is best if the investigator barely knows the people, so there’s no old reputation or preconceptions either way. Now, I know sometimes the accused harasser is someone that everyone respects and thinks, “Not him.” Again, you have to try to forget that for now and just focus on the facts. A woman with a loose reputation can still say no, and a respected former House Speaker allegedly strayed.

Listen to everyone, and take everyone seriously. Don’t decide who’s right yet. Next week: how to substantiate and what happens next.