How to investigate a Compliant of Harassment?
Conducting Fair and Confidential Workplace Investigations in Montana Municipalities
Here are some general investigative guidelines to consider:
• Limit the number of persons who have access to information related to the investigation.
• While complete confidentiality may not be possible, keep the investigation and the facts under a strict "need to know" basis. Emphasize to all those involved in the investigation, including the complainant, the accused and witnesses, that it is the policy to keep discussions strictly confidential and that disciplinary consequences may result from a breach of this confidence.
• Avoid needless disclosure of information to witnesses. For example, instead of asking "Did you see Joe touching Joan?" ask "Have you seen anyone at work touch Joan in an offensive way?"
• If there is more than one allegation, treat each incident separately.
• To avoid liability for defamation, never broadcast the facts of a given situation or the results of your investigation to others or as part of a training exercise.
• During an investigation, every witness should be told that retaliation will not be tolerated. If retaliatory actions are taking place, notify supervisor.
3.1103 Initial Investigation Steps
1. Listen attentively and take the complaint seriously, even if the complaint initially appears questionable. Treat it as valid until the facts have been established. If the employee quits because she or he felt the complaint wasn't taken seriously, liability may be compounded. Avoid comments like "Maybe you're overreacting," or "I'm sure she/he didn't mean anything by it."
2. Set a professional tone for the interview and try to put the complainant at ease as it may be difficult and stressful for the employee to come forward. Keep a neutral perspective and maintain a professional demeanor.
3. Gather facts, don't make judgments. Stay away from comments such as, "Most people would be complimented by that" or "Maybe you shouldn't dress that way for work." Speak in a matter-of‐fact, but supportive way, not one in which you appear to be "cross examining" the complainant.
4. Get answers to: "who, what, when, where, why and how." Encourage the complainant to be as specific as possible. Find out who did what to whom, when did events happen, why and how did they occur, and were there any witnesses. At this stage it would also be wise to ask the employee if he or she is concerned about retaliation, which is often a concern of harassment victims.
5. Try to avoid leading questions, such as: "Did she/he tell offensive jokes?" Instead, ask open‐ended questions, such as: "What did she/he say?" or "Where did she/he touch you?"
6. Get a sense of what the employee views as an acceptable outcome to resolve the problem.
3.1104 Interviewing the Complainant
Explain to the complainant that the charges are serious, and that a thorough investigation needs to be completes before reaching any conclusions. Restate the policy against taking any adverse action against the employee for bringing the charge and ask the complainant to notify you promptly if any such actions occur. Elicit specific details regarding the alleged harassment. Include questions on the type and frequency of conduct and what was said or done. Also, where it occurred, where the complainant was touched, the dates that the conduct occurred, the time period over which the conduct occurred, whether there was a pattern of previous episodes and Montana Municipal Officials Handbook 108 whether the complainant is aware of similar behavior by the accused toward other employees. Keep in mind that a complainant may have difficulty remembering exact events and dates. The investigator must persist in helping the complainant be as specific as possible. Obtain the specific context in which the conduct occurred, including the nature and general description of the work area and location. Did the conduct occur at a work‐related function, during working time, or after hours? Determine the effect of the conduct on the complainant. Try to identify the type of effect (e.g. economic, non‐
economic and/or psychological). Was the conduct received as a joke, was it really unwelcome, did it embarrass, frighten or humiliate the complainant? Often, complainants contend that, while they may have given in to the demands made of them, they did so out of fear or because they felt threatened. It is important to remember that the real issue is whether the behavior was unwelcome. Determine the time relationship between the occurrence of the alleged conduct, its effect on the complainant, and the time when the complainant made the report. If there was a time lag, find out why the complainant waited so long before reporting the situation. A plausible reason might be fear of retaliation. Prepare a chronology of events.
Analyze if certain events may have triggered the complaint, for example, a denial of promotion, pay raise or transfer. Find out what the complainant wants and how the situation might be resolved. Can the complainant continue to work for or with the accused? Will productivity be adversely affected? Will it be embarrassing or awkward? Ask the complainant if they might need counseling. Make no statements about the complainant’s character, job performance or family life. This may result in liability for defamation. 3.1105 Interviewing the Accused Repeat the initial statement made to the complainant about the seriousness of the charge and the concern that no adverse action be taken against the complainant for bringing the complaint. Then, obtain a position statement from the accused. Identify the relationship of the accused to the complainant. Was the accused an agent of the employer, a supervisory employee, a co‐worker or a non‐employee? Remind employees of rights under both Weingarten (if they are unionized) and Garrity (if the investigation could lead to criminal charges made against them). Work with your city attorney for a written Garrity Notice for the employee to sign. Discern whether there was any prior consensual relationship between the parties. How long have the parties known each other? Is there a history of group or individual socializing? Determine whether the accused directed, or had responsibility for, the work of other employees or the complainant, had authority to recommend employment decisions affecting others (for example, hiring, firing, promoting), or was responsible for the records of others. Expect the accused to deny the charges. Observe the reaction. Note whether or not there is surprise, anger or disbelief. Describe the details of the allegation and note the areas of disagreement between the testimonies of both parties. If the accused denies the allegations, probe further to determine with the accused the background, reasons, and motivation that could possibly have triggered the complaint.3.1106 Interviewing the Accused’s Supervisor (When Applicable)
Talk with the supervisor to learn about any discipline problems and behavior patterns of either party and to 3. Governing the Municipality 109 determine if the supervisor knows anything about the relationship between the parties. Find out if the complainant reported the conduct to the supervisor. Was the supervisor in a position to observe the conduct? Should the
supervisor have been alerted to the conduct? For example, was the conduct discussed in the presence of the supervisor or were there any rumors circulating? Determine if there is any documentation available such as letters, memos, reports or statements supporting the conclusion that the supervisor knew or had reason to know of the conduct. 3.1107 Interviewing Witnesses Obtain statements, from any witnesses that support or deny any of the complainant's allegations. This evidence is very critical to the investigation. Be aware that witnesses are often reluctant to come forward out of fear of reprisal. Assure witnesses that their cooperation is important and that their testimony will be kept as confidential
as possible. Reaffirm the policy and the law’s protection against retaliation against a person who assists in an investigation. 3.1108 Resolving the Complaint Prepare a written report of findings. Determine steps to be taken based on this report. When trying to remedy the conduct, don’t "punish the complainant" by moving her or him to less desirable hours or to a less desirable location. If the complainant is offered a transfer, it should be voluntary and the position transferred to should be equal to or better than the prior position. Consider the severity, frequency and pervasiveness of the conduct when imposing discipline on the harasser. Be sure to follow your city’s corrective action and discipline policies and procedures. There may be several options available up to and including discharge. Any form of discipline short of discharge should be accompanied with a warning that similar misconduct in the future might result in immediate discharge. Be sure to allow the harasser the opportunity to follow the city’s grievance policy. Conduct follow‐up interviews with the parties to inform them of resulting actions. Provide follow-up after the conclusion of the investigation regardless of the outcome. A good rule of thumb is to follow-up at one, three, and six months.
• Limit the number of persons who have access to information related to the investigation.
• While complete confidentiality may not be possible, keep the investigation and the facts under a strict "need to know" basis. Emphasize to all those involved in the investigation, including the complainant, the accused and witnesses, that it is the policy to keep discussions strictly confidential and that disciplinary consequences may result from a breach of this confidence.
• Avoid needless disclosure of information to witnesses. For example, instead of asking "Did you see Joe touching Joan?" ask "Have you seen anyone at work touch Joan in an offensive way?"
• If there is more than one allegation, treat each incident separately.
• To avoid liability for defamation, never broadcast the facts of a given situation or the results of your investigation to others or as part of a training exercise.
• During an investigation, every witness should be told that retaliation will not be tolerated. If retaliatory actions are taking place, notify supervisor.
3.1103 Initial Investigation Steps
1. Listen attentively and take the complaint seriously, even if the complaint initially appears questionable. Treat it as valid until the facts have been established. If the employee quits because she or he felt the complaint wasn't taken seriously, liability may be compounded. Avoid comments like "Maybe you're overreacting," or "I'm sure she/he didn't mean anything by it."
2. Set a professional tone for the interview and try to put the complainant at ease as it may be difficult and stressful for the employee to come forward. Keep a neutral perspective and maintain a professional demeanor.
3. Gather facts, don't make judgments. Stay away from comments such as, "Most people would be complimented by that" or "Maybe you shouldn't dress that way for work." Speak in a matter-of‐fact, but supportive way, not one in which you appear to be "cross examining" the complainant.
4. Get answers to: "who, what, when, where, why and how." Encourage the complainant to be as specific as possible. Find out who did what to whom, when did events happen, why and how did they occur, and were there any witnesses. At this stage it would also be wise to ask the employee if he or she is concerned about retaliation, which is often a concern of harassment victims.
5. Try to avoid leading questions, such as: "Did she/he tell offensive jokes?" Instead, ask open‐ended questions, such as: "What did she/he say?" or "Where did she/he touch you?"
6. Get a sense of what the employee views as an acceptable outcome to resolve the problem.
3.1104 Interviewing the Complainant
Explain to the complainant that the charges are serious, and that a thorough investigation needs to be completes before reaching any conclusions. Restate the policy against taking any adverse action against the employee for bringing the charge and ask the complainant to notify you promptly if any such actions occur. Elicit specific details regarding the alleged harassment. Include questions on the type and frequency of conduct and what was said or done. Also, where it occurred, where the complainant was touched, the dates that the conduct occurred, the time period over which the conduct occurred, whether there was a pattern of previous episodes and Montana Municipal Officials Handbook 108 whether the complainant is aware of similar behavior by the accused toward other employees. Keep in mind that a complainant may have difficulty remembering exact events and dates. The investigator must persist in helping the complainant be as specific as possible. Obtain the specific context in which the conduct occurred, including the nature and general description of the work area and location. Did the conduct occur at a work‐related function, during working time, or after hours? Determine the effect of the conduct on the complainant. Try to identify the type of effect (e.g. economic, non‐
economic and/or psychological). Was the conduct received as a joke, was it really unwelcome, did it embarrass, frighten or humiliate the complainant? Often, complainants contend that, while they may have given in to the demands made of them, they did so out of fear or because they felt threatened. It is important to remember that the real issue is whether the behavior was unwelcome. Determine the time relationship between the occurrence of the alleged conduct, its effect on the complainant, and the time when the complainant made the report. If there was a time lag, find out why the complainant waited so long before reporting the situation. A plausible reason might be fear of retaliation. Prepare a chronology of events.
Analyze if certain events may have triggered the complaint, for example, a denial of promotion, pay raise or transfer. Find out what the complainant wants and how the situation might be resolved. Can the complainant continue to work for or with the accused? Will productivity be adversely affected? Will it be embarrassing or awkward? Ask the complainant if they might need counseling. Make no statements about the complainant’s character, job performance or family life. This may result in liability for defamation. 3.1105 Interviewing the Accused Repeat the initial statement made to the complainant about the seriousness of the charge and the concern that no adverse action be taken against the complainant for bringing the complaint. Then, obtain a position statement from the accused. Identify the relationship of the accused to the complainant. Was the accused an agent of the employer, a supervisory employee, a co‐worker or a non‐employee? Remind employees of rights under both Weingarten (if they are unionized) and Garrity (if the investigation could lead to criminal charges made against them). Work with your city attorney for a written Garrity Notice for the employee to sign. Discern whether there was any prior consensual relationship between the parties. How long have the parties known each other? Is there a history of group or individual socializing? Determine whether the accused directed, or had responsibility for, the work of other employees or the complainant, had authority to recommend employment decisions affecting others (for example, hiring, firing, promoting), or was responsible for the records of others. Expect the accused to deny the charges. Observe the reaction. Note whether or not there is surprise, anger or disbelief. Describe the details of the allegation and note the areas of disagreement between the testimonies of both parties. If the accused denies the allegations, probe further to determine with the accused the background, reasons, and motivation that could possibly have triggered the complaint.3.1106 Interviewing the Accused’s Supervisor (When Applicable)
Talk with the supervisor to learn about any discipline problems and behavior patterns of either party and to 3. Governing the Municipality 109 determine if the supervisor knows anything about the relationship between the parties. Find out if the complainant reported the conduct to the supervisor. Was the supervisor in a position to observe the conduct? Should the
supervisor have been alerted to the conduct? For example, was the conduct discussed in the presence of the supervisor or were there any rumors circulating? Determine if there is any documentation available such as letters, memos, reports or statements supporting the conclusion that the supervisor knew or had reason to know of the conduct. 3.1107 Interviewing Witnesses Obtain statements, from any witnesses that support or deny any of the complainant's allegations. This evidence is very critical to the investigation. Be aware that witnesses are often reluctant to come forward out of fear of reprisal. Assure witnesses that their cooperation is important and that their testimony will be kept as confidential
as possible. Reaffirm the policy and the law’s protection against retaliation against a person who assists in an investigation. 3.1108 Resolving the Complaint Prepare a written report of findings. Determine steps to be taken based on this report. When trying to remedy the conduct, don’t "punish the complainant" by moving her or him to less desirable hours or to a less desirable location. If the complainant is offered a transfer, it should be voluntary and the position transferred to should be equal to or better than the prior position. Consider the severity, frequency and pervasiveness of the conduct when imposing discipline on the harasser. Be sure to follow your city’s corrective action and discipline policies and procedures. There may be several options available up to and including discharge. Any form of discipline short of discharge should be accompanied with a warning that similar misconduct in the future might result in immediate discharge. Be sure to allow the harasser the opportunity to follow the city’s grievance policy. Conduct follow‐up interviews with the parties to inform them of resulting actions. Provide follow-up after the conclusion of the investigation regardless of the outcome. A good rule of thumb is to follow-up at one, three, and six months.