The EEOC requires that employers receiving a complaint, or otherwise learning of alleged harassment in the workplace, “investigate promptly and thoroughly…take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring”. That’s a tall order to ensure a just and fair handling of a harassment complaint - an essential order that all organizations are required to follow. The investigation process is, perhaps, the most critical element in dealing with harassment. In cases that have gone to court it is often due to inadequate or absent investigations of complaints.
While there is no such legal requirement for instances of bullying (in which the definition varies widely), it is at the organization’s peril to not investigate bullying complaints. Employees and their attorneys are using various tort laws to bring action against their employer. Additionally, it is possible that an incident of “bullying” may be motivated by the target’s protected class and constitutes illegal discrimination or harassment.
The courts have opined that organizations must prevent and intervene on harassment complaints. The employer is required to demonstrate what it has done to prevent harassment. Not only is conducting an investigation a prevention and intervention tactic, but the HR professional tasked with conducting an investigation should be trained in how to do so—this also demonstrates prevention.
Even if you have been doing investigations for years – if you have never been trained, how do you know if you are conducting them correctly to prevent liability, determine the accuracy of the complaint, corroborate evidence, determine credibility, and form an opinion? This program will cover the intricacies of conducting a harassment investigation.
Learning Objectives:
- To determine if an investigation is necessary
- To discuss the steps of an investigation
- To explore the intricacies of interviewing the accuser, accused and witnesses
- To differentiate between a formal and informal investigative procedures
- To determine credibility and reach a conclusion following an investigation
- To write a formal report outlining the investigation
Course Outline:
- Discussion about if and when an investigation is required
- Comparison of a formal and informal investigation process
- Planning for the investigation
- Sample interview questions provided for the target, the accused and witnesses
- Review of what constitutes a witness
- Legal issues surrounding an investigation such as confidentiality, defamation of character, and false imprisonment
- The importance of documentation of each interviewee
- Examples of appropriate and inappropriate documentation and why it is critical
- Specific details regarding how to corroborate evidence
- List of criteria to determine credibility of those interviewed
- He said/she said
- The role of the investigator in forming an opinion following the investigation
- How to follow-up with the target, accused, and the organization
- The critical importance of an investigative report
- The elements of an investigative report to minimize liability
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