Investigating The Complaint
If a more formal investigation is needed, it is important that you take certain steps to thoroughly investigate the complaint, and, if a violation is found to have occurred, to take steps that are reasonably calculated to stop the harassing behavior.
The most common mistakes in investigating complaints of harassment typically fall into one or more of the following categories: (1) excessive delay in either starting or completing an investigation; (2) providing inadequate feedback to either the complaining party or the alleged harasser throughout the investigative process; (3) making unnecessary disclosures of confidential information; (4) a lack of thoroughness in the investigation; (5) failing to act on anonymous or third party complaints; and (6) failing to recognize the potential implication of First Amendment rights and academic freedom.
The outline below is intended to help you through the investigative process of any complaint, whether harassment or discrimination, and to avoid the above mistakes.
- Do set up a separate investigative file which will include initially include a copy of the complaint (if written), but will eventually include your interview notes, copies of any relevant institutional policies, any written documentation gathered during the investigation, and any written report, if one was created. Nothing pertaining to a sexual harassment complaint should be contained in anyone’s personnel or student file, with the sole exception being any record of discipline imposed once an employee or student is found to have violated a harassment policy.
- Do plan a list of questions about key points in the complaint that need to be covered in the interviews.
- Don't voice opinions about the complaint, the alleged conduct, or whether or not harassment has occurred, and don’t assess credibility, make assumptions, or reach conclusions until the investigation is completed. It is essential that you remain objective throughout the investigation.
- Don't promise anyone confidentiality, though you can tell individuals that you will make every effort to respect privacy. In addition, advise the parties involved to respect each other’s privacy and remind all involved to limit discussions about the complaint to persons with a need to know.
- Do assure all participants in an investigation that retaliation is prohibited and ask participants to inform you if they feel retaliation has occurred.
- Do keep detailed notes of your interviews (including what the interviewee has told you and what you have told the interviewee). The notes should be factual only and not filled with unneeded comments or observations.
- Do review with an interviewee a summary of what he/she has told you. It is permissible to allow the interviewee to review a summary of the interview, but if you do it for one, be sure to do it for all witnesses.
- Don’t guarantee anyone a particular result. Although sometimes a complainant or others will demand a particular result, the outcome ultimately will be determined by the department. However, it is important
to ask the complainant what he/she wants out of the process.
- Don't ask leading questions (i.e., questions that suggest the answer) or multiple choice questions. Ask who, what, when, where, and why questions. Get a detailed chronology of events.
- Do be sensitive to gender issues in the investigative process.
- Do be sensitive to stresses faced by all individuals involved in a sexual harassment investigation. Complainants, alleged harassers, witnesses, and co-workers often experience or feel stress, fear, and uncertainty. When appropriate, make persons aware of the services available through the Faculty and Staff Assistance Program or the Counseling Center.
- Your demeanor should be open, concerned and non-judgmental. Be ready to listen, take the report seriously, and allow the person whatever time he/she needs to tell you about events.
- Keep in mind that the person is under stress and possibly afraid of retaliation. Assure the person that retaliation will not be tolerated and that only those who have "a need to know" will be told anything and that only as much information as is necessary will be revealed.
- Get specific details about what happened. Ask:
- Who was involved?
- What role does this person have in connection with your work (i.e., supervisor, co-worker, supervise)?
- What kind of conduct has this person engaged in that you find offensive?
- When and where did the behavior occur?
- How often did a particular behavior described occur?
- Did you keep a journal, diary, or record of the events you’ve described? If so, request a copy.
- What was the effect of this behavior on you? Did it affect your work? How? How did you respond?
- Did you indicate that the behavior was unwelcome? How?
- Do you know of anyone else who has experienced similar behavior?
- Were there any witnesses? Who?
- Did you tell anyone else what happened? Who? When? Why did you tell that person? What did that person do?
- Do you have any documentation pertaining to your complaint? If so, request a copy.
- What would you like to see as the outcome of this process (e.g., to have the behavior stopped, counseling or discipline, etc.)? Note: Complainants are sometimes surprised by this question and will often attempt to turn it around and ask the investigator what would be appropriate. Avoid making suggestions and avoid making implied commitments that what the person wants to happen will in fact happen.
- Provide a copy of appropriate brochures and the University’s Sexual Harassment Policy.
- If the complainant mentions any witnesses, be sure to get identifying information (at least the name and phone number). Do not ask the complainant to contact potential witnesses for interviews – this is your responsibility.
- Ask the complainant to avoid discussing the investigation with others in the work place since it involves confidential personnel issues. Let the complainant know that you will be asking others involved in the investigation to do the same.
- If you have a written complaint, ask the complainant whether he/she minds you sharing the written complaint with the accused. If the complainant objects, you should instead orally share the substance of the complaint with the accused. The important thing is that the accused be put on notice of the nature of the complaint/s and the specific behaviors complained of, and that he/she be given an opportunity to respond to the allegations.
- At the end of the interview, thank the complainant for coming forward, give an estimated time for completion of the investigation, tell him/her that you will provide updates on the investigative process, but stress that he/she should feel free to ask questions about the progress or bring additional information to your attention.
- After the complainant leaves, with the exception of “need to know” personnel, do not breach privacy by talking about the incident to your colleagues. Also, be sure to complete your notes, keep the notes factual, and resist the temptation to editorialize.
- Periodically check in with the complainant to see how things are going. You also may need to follow up periodically with additional interview questions depending on what is learned during the investigation.
The Alleged Harasser
- Use tact in requesting a meeting with the alleged harasser. The person should be told there is a serious matter to discuss.
- At the initial meeting, explain that a complaint of sexual harassment has been received and that you have been asked to look into it. Let the person know the University takes such allegations seriously, that it is obligated to investigate, and that he/she will have the opportunity to respond. Your demeanor during the meeting should be open, concerned and non-judgmental.
- Describe each behavior or allegation and ask if it has occurred. Allow the person to explain his/her account of the situation. You should simply listen and note the responses. Do not make comments in response. If you have a written complaint which the Complainant has not objected to sharing with the accused, allow the alleged harasser the opportunity to provide a written response.
- If the person admits that a particular behavior occurred and the behavior clearly is improper or seems inappropriate, inform the person that such behavior is inappropriate, unacceptable, and must not happen again. Alleged harassers often acknowledge having engaged in a particular behavior, but offer a different interpretation or deny any intent to harass or dispute the severity of the behavior.
- Ask the alleged harasser if there are witnesses or other persons who may have knowledge pertinent to the allegations and for copies of any pertinent documentation. You, not the alleged harasser, should contact the potential witnesses.
- Ask that the alleged harasser not discuss the matter with potential witnesses or others in the work place and acknowledge that you will try to keep the matter confidential to the extent permitted by the law and University policy.
- The alleged harasser does not have the right to confront the complainant directly, or to know what persons are interviewed about the complaint, or to be present at interviews. What is important is that the alleged harasser be made aware of the substance of the complaint and that he/she has adequate opportunity to respond. If you provide the alleged accuser with a copy of a written complaint, you may want to redact the names and identifying information about individuals other than the complainant.
- Explain the University’s policy on harassment and provide the alleged harasser with a copy of the applicable policy and any pertinent or related brochures.
- Explain that retaliation against the complainant or any other person involved in the investigation is prohibited by law and by University policy and that any retaliation may result in additional charges.
- At the end of the interview, thank the alleged accuser for cooperating, give an estimated time for completion of the investigation, tell him/her that you will keep him/her updated as to the process as the investigation continues, but stress that he/she should feel free to ask questions about the progress or bring additional information to your attention.
- If additional allegations are made during the investigation, or other pertinent information is discovered, you should inform the alleged harasser and give her/him a chance to respond, following the format of the original investigation.
- Indicate that a complaint has been made, but do not share details of the complaint beyond what is needed to enable you to ask the witness questions and for the witness to provide information.
- State the University's policy on sexual harassment and retaliation. Provide the witness with pertinent brochures or a copy of the policy.
- Stress the importance of cooperation and the need for discretion. Indicate that you would prefer the individual not talk about the matter with others.
- Do not guarantee confidentiality.
- Ask about particular behaviors or interactions between the complainant and the alleged accuser that he/she may have witnessed or been told about. Do not ask whether the person has seen or experienced “sexual harassment.” Get the witness to be as specific as possible. Ask who, what, when, and where questions.
- Determine whether the witness ever spoke to either the complainant or alleged harasser about the conduct or events in question. Determine what, if anything, the witness did when he/she received the information and whether the witness reported the matter to anyone in authority.
- Ask whether the witness is aware of any prior incidents or complaints that may be relevant to this complaint or aware of any other persons who may have knowledge or should be interviewed.
- Thank the person for cooperating in the investigation and ask him/her to please follow up if they remember anything else.