Most employers are now aware that all allegations of sexual harassment
should be taken seriously and that investigations should be conducted
in each case. What is less understood is how to choose the right investigator.
All too often, employers appoint individuals who have not received proper
training. Their process is to simply ask questions and take notes on the
answers. Interviews are not investigations.
If an investigation is conducted in the wrong manner, much of the information
gathered may be unhelpful, inadmissible in court, or even potentially
damaging to an employer's interests. In some cases, there may be some
danger of liability for an employer who hires an investigator who has
not had sufficient training to do a competent job.
An EEOC investigator may ask the person you selected to conduct your internal
investigation to list their training and credentials. Their answer to
that question matters.
If your investigator has not had legitimate training then the credibility
of their conclusions, and any recommendations they made, are questionable.
To put it another way-if this case goes to court, and you have based your
company's response on the findings of an untrained investigator, then
you open your company up to this line of reasoning: "So this person
you chose to investigate had no idea what they were doing but they told
you what they thought and you said, "sounds good to me!" And
people wonder why so many companies are losing these cases.
Proper Investigation Requires Proper Training
Human resources people are often put in charge of sexual harassment investigations.
Many HR professionals believe that they know how to investigate, because
they do not know enough to understand that investigation requires specific
skills and methodology. Even experienced HR people who are familiar with
the rules may not know how to conduct an objective, comprehensive, and
credible sexual harassment investigation.
If you are a large company that handles many allegations of sexual harassment,
you may consider investing in the appropriate training and developing
your own internal investigative team. A smaller company may be better
served by bringing in a credentialed independent investigator on a case-by-case
basis. If you do opt to send an HR representative for additional training,
make sure that you vet the program carefully.
Make sure that any training you invest in focuses specifically on the methodology
of interrogation and investigation, not an unrelated topic. For instance,
I have heard of seminars on how to read body language to tell if someone
is lying. Knowing that someone is lying is a far cry from knowing the
truth. Learning how to get someone to tell you the truth is a completely
different skillset. In my own experience, investigation is a process:
you learn, practice, get good at it, make mistakes at it, get better at
it, and eventually stop making the same mistakes. If you don't investigate
a lot it is very hard to actually practice. Investigation is not something
you can learn by reading one article or by attending one hour-long seminar.
Law enforcement agencies sometimes offer training programs in interrogation
and investigation techniques. I trained with homicide officers in Houston,
Texas. As I went through their courses I learned the methods they use
to get people to tell them what happened when a situation resulted in
a death. These investigators know how to effectively interrogate prisoners
in a state where they execute more people than anywhere else for murder,
and ultimately get them to confess. I learned that methodology and then
adapted it. Their methods are just as effective in the case of a sexual
The Pros and Cons of Hiring an Attorney to Investigate Harassment
There are upsides and downsides to bringing in an attorney to investigate
a sexual harassment complaint. If you bring in a lawyer you might get
some attorney client privilege, which can be helpful. You should be cautioned
that if your investigator is not a lawyer the results of their investigation
are discoverable. If an investigation produces admissions or evidence
that works against your interests, then your investigator's notes
may blaze a trail for the plaintiff's attorney to follow to victory.
So you may get some protection if you hire an attorney to conduct the
Keep in mind that the same person cannot serve as both your lawyer and
your investigator. If the case goes to court you will require two lawyers:
one who knows how to investigate and one who knows how to defend the case.
An attorney who is armed with the facts may have a better chance of getting
a complaint dismissed, or settling a complaint quickly and quietly. If
a case does advance to court an attorney will know how to build a file
that will be admissible.
Whether your investigator is an attorney or someone with extensive training
in the techniques of investigating sexual harassment-make sure your company
puts as much thought and planning into the process of choosing your investigator
as you have into creating your sexual harassment policy. A thorough investigation
conducted by a skilled professional may help an employer limit their liability,
or avoid a lawsuit altogether.
Stephen B. Williamson is a principal with The Van Winkle Law Firm who focuses on
workplace and employment law as well as construction and toxic tort litigation in state and federal
courts. Numerous corporations from around the United States, including
a production manufacturing facility that hired him to investigate allegations
of widespread sexual assault and intimidation, have retained him as an
investigator. He is also a frequent lecturer who has taught seminars on
how to conduct investigations, as well as other employment and labor law
issues. Prior to law school, Williamson was a police officer in Texas.