This document discusses challenging subjects in workplace harassment investigations. It identifies common types of difficult parties, including alleged wrongdoers like manipulative harassers or those in high positions, as well as complainants like poor performers or those making parting shot complaints. It emphasizes the core objectives of gathering facts, responding appropriately to minimize liability, and optimizing future conduct. Specific examples are provided, such as how to handle a CEO accused of harassment or a manipulative harasser who denies claims that can't be proven. Throughout, it stresses properly communicating the investigation process and documenting actions and reasons for decisions.

1. Mastering Challenging
Investigation Interview Subjects
William A. Nolan, Barnes & Thornburg LLP

2. Presenter bio
Bill Nolan is the Managing Partner of Barnes & Thornburg
LLP’s Ohio office, which he opened in 2009, and a member
of the firm’s Labor and Employment Law Department.
Bill works to bring attentiveness and clarity to bear on
employment, contract, and other disputes, and helps clients
build teams, policies and processes to minimize the
frequency and severity of disputes.
He frequently counsels clients on workplace harassment
complaints and investigations, wage and hour compliance,
and lawful discipline and terminations. He also conducts
manager and workplace training to ensure legal compliance
on the front lines.

3. Game Plan
• Premise: We keep seeing the same people!
• Who are they? The Witness Files.
• Review investigation objectives generally
• Look at some specific examples
• Takeaways

4. Challenges: Alleged Wrongdoers
• Clueless yet compliant
• High risk harasser
• Master manipulator

5. Challenges: Complainants
• Poor performer
• Questionable
• Counseled for performance
• Parting shot

6. Challenges: Other Players
• Squeamish supervisor
• Reluctant innocent bystander
• Gossipy witness

7. Here they are on the web …
http://i-sight.com/author/bill-nolan/

8. Investigation Objectives
• Gather facts
• Respond accordingly
– Consequences for past conduct
– Optimize future conduct
• Towards complainant
• Towards others: you are on notice
• All of which: minimize liability to all parties

9. Parting Shot Complainant
• Complaint made on the way out
• Exit could be voluntary or involuntary
• Assume: no prior notification
• Assume: not related to reason for exit

10. Poll Question
The parting shot complainant is gone.
Do we have to investigate?

11. Parting Shot Complainant
• Review objectives: most still apply
– Liability towards complainant less … but
possible
– No less so towards other employees

12. Poll Question
Should you put the brakes on the
resignation or termination?

13. Parting Shot Complainant
• Put it on hold?
– “case by case”
– Factors tending towards putting it on hold
• Connection between conduct and departure
• More severe conduct

14. Parting Shot Complainant
• Communicating with complainant
– Lost your ability to compel cooperation
– Document efforts to do so
• Follow up with the complainant?
– Usually yes with current employees
– Here: maybe if sense that complainant may
be litigious

15. High Risk Harasser
• Mary accuses Harry and Hank of inappropriate
comments
• Hank: co-worker, African American
• Harry: CEO, 2nd
year of 5 year contract
• Both are outraged
– Hank: would be discrimination if he were disciplined
– Harry: reputation at stake

16. High Risk Harasser
• Accused has to understand: company has to
investigate
– Doing so also protects innocent

17. High Risk Harasser
• Necessary steps
– Clearly communicate to all: must investigate,
no conclusions reached
– Maximize confidentiality
– Document reasons for action / inaction
• All good practices, but this is where they matter
most

18. Squeamish supervisor
• Marilyn and Jim are sales reps
• Jim is a top producer
• Marilyn’s 2nd
complaint about Jim’s conduct
• 3rd
party confirmation so little question …
• But supervisor Stan is adamant

19. Squeamish supervisor
• Action steps if Stan (and above) won’t act
– Invoke threat of individual liability
– Any ability to restructure work environment?
– Make sure it is not perceived as retaliatory by
Mary
• 3rd
party confirmation so little question …
• But supervisor Stan is adamant

20. Master manipulator
• Mike: field engineer, 18 mos. with company
• Vicky: part admin, part CSR, marginal performer
• Mike is a “smart” harasser
• Vicky fearful but finally complains
• Mike denies it, and Vicky can’t prove it

21. Master manipulator
• The company’s predicament
– Can’t conclude “harassment”
– Vicky has “motive”
– Work environment defies management

22. Master manipulator
• Things to consider
– Hindsight but: background checks
– Work environment also defies proof
– More sophisticated investigation techniques?
– Invest in another employee in the relationship

23. Takeaways
• The objectives almost never change
– Gather facts as well as possible
– Document that you are doing so
• Challenging players are just different obstacles
to manage around
• Don’t let them distract you from the core
objectives
• Snowflakes

24. REVIEW: Investigation Objectives
• Gather facts
• Respond accordingly
– Consequences for past conduct
– Optimize future conduct
• Towards complainant
• Towards others: you are on notice
• All of which: minimize liability to all parties

25. Thank-you for participating
If you have any questions, please feel free
to email them to:
William A. Nolan, Office Managing Partner
bill.nolan@btlaw.com
Joe Gerard, Vice President Marketing and Sales
j.gerard@i-sight.com