Investigating harassment in the workplace is a top priority for many organizations in 2018. Effective investigations lead to better risk management and prevention. But harassment allegations are among the toughest to investigate. Often, all you get is a “he said, she said” account. Competent investigators have the skills to get past these hurdles and find out the truth. Join Meric Bloch, Certified Fraud Examiner, expert investigator and trainer, as he examines the elements of a successful harassment investigation.

1. Investigating Harassment
Claims: What to Do When You
Don’t Know What to Do
Meric Craig Bloch, Principal, Winter Compliance LLC

2. Meric Craig Bloch
Creator of the Winter Method® for conducting workplace investigations
Compliance Officer for three multinational companies and a healthcare
system
Certified Compliance and Ethics Professional - Fellow, Certified Fraud
Examiner, and Professional Certified Investigator
Author, Workplace Investigations: Techniques and Strategies for
Investigators and Compliance Officers; The First Information Is Almost
Always Wrong; and Investigative Interviewing
Faculty, Society of Corporate Compliance and Ethics’ Basic Compliance
and Ethics Academy
Conducted approximately 500 workplace investigations

3. What is Your Role?
• Conflict resolver or investigator?
• Fact finder or problem solver?
• Need to identify contributory factors, or just make it stop?
• Evidence or understanding?
• Subjective or objective inquiry?
Most investigator frustration or lackluster results come from a failure to
appreciate his/her proper role in the process.

4. Elements of a Workplace Investigation
• A business-like administrative inquiry that reaches a rational conclusion.
• Thorough interviewing of the Reporter, the Subject, and fact witnesses with
relevant information.
• Consideration of the factual issues and business-conduct standards
involved.
• Gathering and analysis of relevant evidence.
• Assessment of the credibility of the investigation participants and the
strength of their evidence.
• A legally defensible determination of whether the conduct complained about
actually occurred.

5. Understanding the Report
• Identify the issues – know what you may be investigating.
• If you don’t fully understand the report, it can result in:
• A failure to investigate at all
• A failure to investigate the right issue
• Choosing the wrong investigator
• Failing to talk to the right people
• Failing to reach the right conclusion
• A management over-reaction or under-reaction

6. Understanding the Report
• Common mistakes in issue spotting
• Not listening carefully to the Reporter or misreading a written report
• Missing an issue because you jump to conclusions
• Head in the sand – passive debriefing of the Reporter
• Looking for a magic word – “she never said she was claiming
discrimination”
• Accepting legal jargon by the Reporter
• Dismissing Reporters who appear biased

7. Interviewing the Reporter
• Debrief the Reporter fully about the substance of the report.
• Learn the basis of his / her knowledge and how to corroborate the facts.
• It is possible to debrief an anonymous Reporter.
• Don’t take the Reporter’s characterizations at face value.
• Probe for weaknesses by asking Reporters to explain what he /she expects
the Subject to say in defense of his / her actions.
• Ask the Reporter who else he / she has contacted to get action on the issue
and what those others have done so far.
• Explore the Reporter’s motives for making the report.

8. Interviewing the Reporter
•Discuss confidentiality protections and limits with the Reporter. Never
promise secrecy.
•Be alert to the possibility that the Reporter may be involved in the
misconduct.
•Instruct the Reporter not to assist the investigation.
•Manage the Reporter’s expectations as to the process and outcomes.
•Don’t allow the Reporter to presume that you believe the report is valid.
You have not yet made any inquiries.
•Don’t promise that an investigation will be conducted.

9. What Are the Issues?
You determine the issues / allegations, not the Reporter.
•Look for larger issues that will drive your resolution strategy
• Possible legal violations
• High-level people involved or some special sensitivity
• Whistleblower retaliation
• Material impact on business
•Look for implied allegations
• Helps identify the intent of the report
• If the Reporter does not articulate it, you still need to account for it.
•Look for systemic problems
• Issues affecting the organization, a division or a department (rather than
just those people affected by the specific report)
• Potential root causes can steer you to the places to make inquiries.

10. What is Your Business Conduct
Standard?
Most harassment prohibitions look like this:
Our company is committed to promoting and maintaining a
diverse and inclusive workplace. We maintain a positive workplace
where people have the freedom to contribute to the company’s
success in a culture of respect. We have procedures in place to
resolve harassment complaints to provide a safe workplace.

11. What is Your Business Conduct
Standard?
Hostile-work-environment harassment:
• A company employee
• Conduct by co-worker, manager or anyone job-related
• The employee considers it unwelcome
• Severe and pervasive enough to render workplace environment
intimidating, hostile or offensive
What constitutes “severe and pervasive”
• Frequency of the unwelcome conduct
• Severity of the conduct
• Whether it was threatening, humiliating or merely an offensive utterance
• Whether it unreasonably interfered with work performance
• The effect on the employee’s well-being
• Whether the person was a superior within the organization
Source: US Department of Labor, Civil Rights Center

12. Framing Your Investigation Allegation
Did Larry Green violate Paper Clip Office
Supply’s harassment policy when he
failed to maintain a culture of respect
during a one-on-one meeting with Susan
Franklin.
The investigation will seek to determine if:
•Larry Green is a company employee;
•Larry engaged in certain conduct that was
job-related;
•Susan Franklin considered that conduct to
be unwelcome; and
•That conduct was either severe or
pervasive enough to make Susan’s work
environment intimidating, hostile or
offensive.

13. Conducting Interviews
• Your initial steps in the interview:
• Give a standard set of instructions to the interviewee.
• Explain why you are there, why the interviewee is there, the
investigation’s objective, your approach, etc.
• Extend basic courtesy. A collegial, business-like approach is best.
• Be alert to signs of hostility, such as the refusal to engage in the
basic social acts.
• Start “norming” your interviewee. Keep the first questions simple.
• Consider your personal and professional safety when conducting an
interview.

14. Admission-Seeking Interviews
• There is a difference between an interview and an interrogation. The
Subject is interrogated.
• You seek information from the Subject as well as admissions of key
facts.
• The Subject should be confronted with the information and given an
opportunity to respond.
• The Subject is entitled to offer you exculpatory information and
mitigating circumstances.
• Remind the Subject that you are a fact-finder, and the investigation
should not be deprived of the Subject’s information and responses.
• You seek to explain the “why” more than the “what.”

15. Admission-Seeking Interviews
• Do not anticipate the outcome of the investigation or speculate with
the Subject about what is likely to happen after the investigation is
complete.
• Don’t argue with the Subject.
• Ask the Subject open-ended questions initially and then follow with
more-specific questions intended to solicit admissions.
• If the Subject attempts to undermine the credibility of other
interviewees, explore the basis of the attempt.
• Allow the Subject to suggest witnesses or documents that might
corroborate his defenses.

16. Assessing Credibility
• Is the explanation you are given inherently plausible?
• Does the explanation follow the known timeline of events?
• Is there corroborating evidence to support the interviewee’s
explanation?
• Does the interviewee have actual knowledge of that information, or
is it second-hand information?
• Are there other objective factors that give the information
credibility?
• Avoid personal interpretations of the interviewee’s credibility.

17. Analysis of the Evidence
• You have both the burden of proof and the burden of persuasion.
• You must analyze the evidence and compare it against each
element of the applicable standard.
• The three principles of relevancy, quality and quantity of evidence
apply.
• The burden of proof is a “preponderance of the evidence.”
• Investigations are not based on what you believe happened.
• Views of the investigator, and perspectives, opinions or institutional
knowledge of stakeholders are not evidence.

18. Types of Conclusions
• Substantiated: An allegation is substantiated when an investigation
identifies sufficient evidence to show that it is more likely than not that
each element of the business-conduct standard occurred.
• Unsubstantiated: An allegation is unsubstantiated when an
investigation either (i) cannot meet the burden of proof to substantiate
the allegation, or (ii) proves affirmatively that the alleged misconduct
did not occur.
• Inconclusive: An allegation is inconclusive if the investigation is
unable to determine whether the allegation can be substantiated.

19. Framing Your Investigation Conclusion
Larry Green violated Paper Clip Office
Supply’s harassment policy when he
failed to maintain a culture of respect
during a one-on-one meeting with Susan
Franklin.
The investigation determined that:
•Larry Green is a company employee;
•Larry engaged in job-related conduct
when he used profanity and told a sexually
oriented joke during a meeting with Susan
Franklin;
•Susan considered that conduct to be
unwelcome; but
•That conduct was neither severe nor
pervasive enough to make Susan’s work
environment intimidating, hostile or
offensive.

20. Avoid Pitfalls in Investigation Report Writing
• Explicitly and precisely describe the documents which are part of your
findings.
• Facts should be objectively, not subjectively, stated. Opinions can be
easily challenged.
• Do not tell only one side of the story.
• Use direct quotes whenever possible.
• Be careful when using pronouns.
• Keep your tone respectful, courteous and constructive, even if the proven
misconduct was egregious.
• Don’t include any of your observations or conclusions that could later be
construed as admissions of liability.

21. Final Thoughts
• Remember that an investigation is a programmatic activity that must
lead to a defensible conclusion.
• Know your organization’s rules, management’s goals and relevant
laws and regulations for your area.
• Stay within your area of competence.
• Develop your own personal investigation style.
• The process is more important than the needs of any one
investigation.
• Remember the impact of your efforts on your colleagues and the
organization.

22. Thank-you for participating
Contact Meric Bloch, Principal, Winter Compliance LLC, (973) 768
3756
mbloch@wintercompliance.com
@fraudinvestigat8r
https://www.linkedin.com/in/mericbloch
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j.gerard@i-sight.com
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