As soon as management learns about alleged harassment, it should assign a management person to be in charge of a detailed fact-finding investigation. Whoever conducts the investigation should be trained in the skills that are required for interviewing witnesses and evaluating credibility. If the alleged harasser is high up in management or the owner of the company or if the claim is very serious, you may want to hire an outside investigator or attorney to conduct the investigation.
Separate the Alleged Harasser from the Complainant
It may be necessary to undertake intermediate measures before completing the investigation to ensure that further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.
The accuser should be asked to put the claims and a statement of the incident(s) in writing. The witnesses should be asked to sign a summary of the facts each witness provides. Keep good notes of interviews, responses, dates/times, efforts, results, actions and refusals.
The investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information.
Questions To Ask The Complainant:
o Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
oAre there any persons who have relevant information? Was anyone present for the incident? Did you tell anyone?
oAre there any notes, physical evidence, or other documentation regarding the incident(s)?
oHow would you like to see the situation resolved?
Questions To Ask The Alleged Harasser:
oWhat is your response to the allegations?
oIf the harasser claims that the allegation are false, ask why the person who complained might lie.
oAre there any persons who have relevant information?
Questions to Ask Third Parties:
oWhat did you see, hear? When did this occur?
An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it.
Reaching a Determination
Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether inappropriate conduct occurred. The parties should be informed of the determination.
Enforce Policy of No Retaliation
Remind all of the parties involved that the company has a policy against retaliation.
Implement Preventive and Corrective Measures
Determine whether any disciplinary measures such as suspension, transfer, training or termination are appropriate and implement such disciplinary measures. Be sure to complete the mandatory sexual harassment training required by California law if your company has more than 50 employees. Implement an anti-harassment policy and complaint procedure if the company does not already have such procedures.
Contact a Lawyer for Assistance
Be sure to contact an employment lawyer for assistance in the investigation or to answer any questions when unusual circumstances arise.
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