Sexual Harassment Investigation Procedure: Just the Facts

Sexual harassment investigation procedure includes policies related to the proper handling of sexual harassment complaints, investigating sexual harassment claims, and evaluating appropriate disciplinary measures when it has been determined there are violations.  My ability to conduct sexual harassment training comes from twelve years of experience conducting workplace investigations.  This includes complaints of sexual harassment, hostile work environment, and discrimination.  When I am training at a client’s office, a client will often ask for assistance with an internal investigation.  We can help, but it would be wise to train your own internal team to investigate harassment complaints.   All investigations should be conducted in a legally sound, defensible manner.

Sexual harassment investigations require discretion, attention to detail, and an open mind.  You will need private office space.  Your approach must make each interviewee as comfortable as possible (under the circumstances).  In a calm manner, the interviewer must give the interviewee:

  1. The freedom to leave at any time
  2. The freedom to lie if they so choose
  3. The freedom to tell the truth and to explain their actions

When done in a skillful manner, most interviewees will choose to admit their actions and explain themselves.

Union Considerations In Sexual Harassment Investigations

Even in union environments, a skillful interviewer can obtain an admission of wrong doing.  You should always welcome union involvement if the employee feels the need to call for a union steward, as they have a right to request assistance.  Under Weingarten rights, union employees are guaranteed the right to union representation during an investigative interview.  This comes with the added benefit of having an additional witness (the union steward).

Remember to stick to the facts when following sexual harassment investigation procedure.  Do your best to avoid offering opinions.  If the interviewee provides information on another person’s opinion, interview that person directly rather than rely on hearsay.  Do not have any “off the record” conversations or comments.  Avoid doodling or writing any opinions in your notes.

Protected Classes

Before beginning, review considerations for interviewees that are in Protected Classes.  There are federal and state-specific laws that provide additional protections for harassment and discrimination in employment based on Protected Classes.  These include but are not limited to:

  • Race
  • Color
  • Ancestry
  • National origin
  • Religion
  • Creed
  • Age (over 40)
  • Mental and physical disability
  • Sex/gender
  • Pregnancy/Childbirth/breastfeeding
  • Sexual orientation
  • Gender identity/gender expression
  • Medical condition
  • Genetic information
  • Marital status
  • Military/veteran status

Written Declaration

Once the interviewer finishes questioning the interviewee, a written declaration of facts should be written by the interviewee.  The interviewee then signs it under penalty of perjury.  The written declaration may document actions done by others (for example, a witness statement).  Or it may document the interviewee’s actions, whether they are the victim or the accused.

If the interviewee has made an admission of wrongdoing, then a detailed written declaration is taken.  In the written declaration, the interviewee will be asked to truthfully describe the circumstances of the interview, including that they were offered representation, were not been misled, and were not tricked.  The written statement documents what the interviewee has said verbally during the interview.  If the interviewee was involved in wrongdoing, their written declaration will contain details regarding their involvement, the involvement of others, and violations of company policy and/or the law.  The interviewee is given an opportunity to express regret for their actions, and make a commitment to not repeat the same mistakes, regardless of if they are terminated after making the admission or if they are allowed to keep their job.

Each interviewee’s statements should contain proof that the declaration was obtained on a voluntary basis, that the interviewee was not held against their will, and that the interviewee was informed of their rights.  Do not promise an interviewee that they can keep their job if they admit to wrongdoing.  Avoid making any promises or threats.  Explain that you are simply fact-finding and will not be the one making the decision.  Be aware that the interviewee has the right to refuse to write a statement.  Statements are voluntary, so do not demand a statement from an unwilling interviewee.

Oral Declaration

To ensure that the interview is successful, we also obtain a voluntary audio-recorded oral declaration taken under penalty of perjury.

Why is only the final portion of the interview recorded?  Because a tape recorder can be intimidating.  The interviewee is asked before the tape recorder is turned on if they consent to being recorded (California is a two-party consent state).   if they do not consent, the meeting is over.  If they do consent, the meeting continues.  During the introduction on tape, the interviewee states that they are aware of and consent to being audio recorded, as do all others in the interview room.   We then cover each issue raised during the interview, and the interviewee answers on tape.  The interviewer asks the interviewee open-ended questions that demonstrate that the meeting was voluntary, and that any admissions made by the interviewee are of their own free will. This is where we use our proprietary process and ask questions that demonstrate the admissions made by the interviewee were voluntary and truthful.  To learn our proprietary process, we offer The Process of Investigation, a training module designed to teach our methodology to your internal investigation team.

The interviewer should accurately reproduce the questions asked during the earlier non-recorded portion of the meeting, and have the interviewee provide context and details.  This is invaluable, because the recording contains the real voice of the interviewee, memorializes the harassment investigation procedure utilized by the interviewer, and details that the interviewee’s admission was made freely and voluntarily.  This validates the written declaration and adds detail that either demonstrates the interviewee’s statement shows consistency, or does not show consistency.

Conclusion – Sexual Harassment Investigation Procedure

Receiving an admission of guilt in a written declaration and an oral declaration does not guarantee that you can avoid court or an EEOC complaint.  The interviewee still has a right to file a complaint, allege retaliation, file a civil suit, or file for unemployment.  The best defense the employer has are the declarations they obtained from the interviewee.  Written and oral declarations demonstrate that the investigation was conducted in a legal, ethical manner.  Following proper sexual harassment investigation procedure will lead to the best possible outcome in a difficult situation involving sexual harassment claims.

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