Over the past year, allegations of unlawful harassment have dominated headlines. As a result, many employers have revised their anti-harassment policies. However, a well drafted policy is meaningless unless complaints of harassment are promptly investigated and appropriate corrective action is taken.

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2. Select an investigator.
Most employers task their in-house human
resources professionals with investigating
harassment complaints because of their
familiarity with the employer’s personnel and
policies. However, when the accused is an
executive, the nature of the complaint is very
serious, and/or there is risk of legal liability,
consideration should be given to hiring
outside counsel to conduct the investigation.
Regardless of whom the employer selects to
conduct the investigation, the investigator
should be impartial, objective and fair.
3. Interview the complainant.
Every investigation should begin with an
interview of the complainant even if the
complainant has already provided a written
statement. In addition, an interactive interview
will enable the interviewer to ask the
complainant questions that are not addressed
in the written statement.
During the interview, the complainant should
be asked who, what, when, where and how
questions. The complainant should also be
asked to provide the investigator with the
names of any witnesses to the harassment or
other people with relevant information. In
addition, the complainant should also be
asked to provide the investigator with
HR
What are the keys to an effective
workplace investigation?
Over the past year, allegations of unlawful
harassment have dominated headlines. As a
result, many employers have revised their
anti-harassment policies. However, a well
drafted policy is meaningless unless
complaints of harassment are promptly
investigated and appropriate corrective action
is taken.
Below are some tips for conducting
workplace investigations:
1. Promptly begin the investigation.
A harassment investigation should begin as
soon as reasonably possible after the alleged
harassment is reported. While no specific rule
for “promptness” exists, courts have held that
an employer should take action within days
of receiving notice of the alleged issue. The
Third Circuit Court of Appeals, for example,
held that an employer’s response was
sufficient when the employer began an
investigation the same day the complaint was
received. Conversely, the Southern District of
New York held that an investigation that was
initiated four weeks after a harassment
complaint was received was not sufficiently
“prompt”. continued
corroborating evidence such as notes, text
messages, etc. Finally, the complainant
should be advised that he/she will not be
retaliated against for providing truthful
information.
All of the above information should be
included in a written report signed and dated
by the complainant.
4. Determine whether interim
measures should be taken.
If the harassment allegations, if proven,
would result in the termination of the
Valerie Faeth
Cohen & Grigsby

2. accused’s employment or the accused is the
complainant’s supervisor or an employee
with whom the complainant frequently
works, the investigator should consider
whether interim measures should be taken to
protect the complainant before the
investigation is finalized. Interim measures
may include placing the accused on a leave of
absence or moving the accused to another
shift or department. However, employers
should avoid taking any actions that may
appear to be retaliatory such as placing the
complainant on leave, even if paid, or
reassigning the complainant.
5. Interview any and all witnesses.
The investigator should interview all
witnesses identified by the complainant in
order to fulfill legal obligations. At the
beginning of each interview, the investigator
should provide each witness with a brief
explanation regarding the purpose of the
investigation and should ask each witness
who, what, when, where and how questions.
The investigator should also inform each
witness that their statements are not
confidential but will only be shared with
others on a need-to-know basis. All of this
information should be included in a written
report signed and dated by each witness.
After the complainant and witnesses
identified by the complainant have been
interviewed, the accused should be
interviewed. During the interview, the
accused should be advised that a complaint
has been brought against him/her; that the
employer has a legal obligation to investigate
the complaint; and that the accused should not
retaliate against the complainant. In addition
to asking the accused to respond to the
allegations, the accused should be asked if
there is any reason the complainant would lie;
whether any complaint of harassment has ever
been made against him/her in the past; and
whether he/she has ever been disciplined for
harassment in the past. The accused should
also be asked if there are any other persons
with relevant information and any relevant
notes, physical evidence or other
documentation to corroborate the accused’s
statements. This information should be
incorporated into a written report signed and
dated by the accused just like all of the other
interviews.
6. Document the investigation.
The investigator should document the entire
investigation process as well as any remedial
or corrective actions that were taken and the
reasons. This step is critical because the
employer may be required to demonstrate
when and how it investigated the employee’s
complaint. The investigator should presume
that the documentation will be reviewed by
an administrative agency or a jury at trial.
7. Take prompt remedial action.
After all of the witnesses as well as the
accused have been interviewed and any
credibility issues have been resolved, the
employer should promptly determine whether
any unlawful harassment and/or retaliation
has occurred. If the employer concludes that
the conduct being investigated did occur, they
should take reasonable and appropriate
disciplinary action against the accused —
including termination. However, the employer
should make certain that they have treated
other employees accused of similar conduct in
the same fashion, since the employer may
have to prove in future litigation that they
acted reasonably and fairly.
8. Communicate the outcome of the
investigation.
After a determination has been made, it
should be communicated to the complainant
and the accused in separate face-to-face
meetings. If the accused is disciplined in some
way, the complainant should be advised that
appropriate remedial measures were taken
without specifying the action. If the accused
remains employed, the complainant should
also be encouraged to report any further
instances of harassment or retaliation.
Likewise, the investigator should remind the
accused of the company’s EEO and anti-
harassment policies and that he/she must not
retaliate against the complainant or anyone
who cooperated in the investigation.
I Valerie Faeth is director in the Employment
Litigation, Labor and Employment and Workers’
Compensation Practice Groups at Cohen & Grigsby.