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 harassment investigation.
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 investigation.
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.