By Sue Erwin Harper
Partner, Nelson Mullins Riley & Scarborough, LLP


My article last month discussed how employers can reduce risk in sexual harassment claims by engaging an experienced, unbiased investigator to conduct a prompt investigation. But what if you can’t afford to hire an outside investigator? The next best thing is to appoint a competent, fair minded, management-level employee to investigate.

After his or her selection, provide the investigator with the written complaint, applicable employer policies, personnel files of those involved, and any other evidence such as time sheets, emails, or calendars. The investigator should then lay out a plan for the investigative process that will consist primarily of interviewing everyone the complainant and the accused identify as possible witnesses.

The investigator should not be associated with the key players or involved in the underlying events. The investigator should choose another uninvolved individual to attend each interview, not as a participant, but solely as a note taker and silent observer. It is better if the investigator and the observer are of different sexes so that one is the same gender as the person being interviewed.

The interviews should take place where other employees cannot see who is interviewed or hear what is said. If there is no such location in the workplace, you should find one nearby where the interviews can proceed in private.

The investigator should begin by separately interviewing the complainant and the accused. Each should be allowed to tell his or her story completely.

The investigator should start by asking the complaining party to detail the circumstances of the alleged harassment:

Who, what, when, where?
How did you react?
Have you experienced sexual harassment here before?
If so, inquire into each event.
Did anyone else witness the event(s)?
Did you talk with anyone about it after the event(s) took place?
Do you have any physical evidence that relates to the event(s)?
Is there anyone else who may have relevant information?
Have you and your job been affected by the event(s)? If so, how?
Did you seek any medical treatment or counseling as a result of the event(s)?
What action do you want the company to take?
Be sure to contact me immediately if anyone criticizes or acts out against you for complaining; any retaliatory action is strictly forbidden.

Next the investigator should interview the alleged harasser, beginning by generally outlining the facts and circumstances the complainant described. Give the accused harasser every opportunity to dispute those facts. Then ask:

Which employees regularly witness your and the complainant’s interactions?
If the events alleged did not occur, do you know of any reason the complainant would make them up?
Do you have any evidence relating to the complainant or the claim(s)?
Do not retaliate against the complainant in any way or you will be disciplined.

Next, the investigator should interview any individuals mentioned by the key players and any others with firsthand knowledge. Begin each interview like this:

The company has received a complaint of sexual harassment of a [female/male] employee by a [male/female] employee here at the facility. We take this complaint very seriously. We want to do everything we can to stop any sexual harassment that may be occurring.

Once we are made aware of a sexual harassment claim, it is our responsibility to investigate to determine what happened and what can be done to end harassment that any employees may be experiencing.

For privacy reasons, we are not able to identify either the person who complained or the person who is alleged to have harassed her/him.

We are investigating by asking employees what, if anything, they know about any sexual harassment that is occurring or that has occurred so that we can stop it immediately and keep it from happening again.

We ask that you be as candid as possible, and that, out of concern for the privacy of others, you not discuss this interview with anyone else.

Inform those being interviewed that their statements are not confidential, but that the information they provide will be disclosed to individuals on a need-to-know basis.

Make sure each witness understands the legal definition of sexual harassment. This definition should be available in writing, as it appears in an employee handbook or some other appropriate publication.

Use a reliable method of record-keeping, preferably note taking; tape recording may inhibit and keep some witnesses from being forthright.

Let employees describe the event in their own words. Ask open-ended questions, not ones that will elicit only a “yes” or “no” answer.  Some questions include:

What occurrences are you aware of that might constitute sexual harassment here?
If multiple events, inquire into each event: who, what, when, where?
What did you observe? Who else might have seen what you saw or heard?
Did you talk with anyone after the event(s) took place, and if so, when and what was said?
Have you ever experienced sexual harassment here yourself? If so, who, what, when, where?
Is there anything else relating to this topic that you would like to tell us?

As I advised in last month’s article, once the investigation is complete, the investigator should prepare a confidential report of findings and recommendations for company management. The report should include the initial complaint, a description of any evidence reviewed, the witnesses who were interviewed, what they said, and an assessment of their credibility. It should apply the relevant law and policies to the factual findings to conclude whether sexual harassment occurred. Finally, the investigator should recommend a course of action, including appropriate discipline and other remedial action, if any.

Sue Erwin “Corky” Harper, a partner of Nelson Mullins Riley & Scarborough LLP, leads the Firm’s labor and employment practice in Columbia, South Carolina. Certified by the South Carolina Supreme Court as a specialist in employment and labor law, her practice includes representing corporations in employment discrimination litigation, the trial of trade secret claims, enforcing and challenging covenants not to compete, and defending individual and class actions alleging wage and hour violations.