Lawyer as Detective – Sexual Harassment Investigations
It was a hot humid afternoon, the kind when the Cubs blow a 5 to 2 lead in the top of the ninth. I was wearing my light-blue double-worsted French-cuff blouse, black pumps, and black pencil skirt with back-slit detail. Perfect for court or taking in a set at Buddy Guy’s. The Blue Line was rumbling past my law office and I was wondering whether the horse fly on my window was going to sit still long enough for me to swat it to kingdom-come with the Daily Law Bulletin my partner just dropped off. I could hardly hear the phone ringing over the racket, but I knew it meant trouble.
I’ve represented employees and employers in and outside the courtroom for over 20 years. Because of my experience in workplace discrimination, I also am hired by employers and their attorneys as an independent investigator of workplace harassment. In other words, I get to play detective (hence, my salute to Raymond Chandler). Our Supreme Court has made abundantly clear that when faced with a sexual harassment complaint, an employer must conduct a prompt, thorough investigation and take appropriate remedial action based upon the results of that investigation. When properly conducted, the investigation can protect employers from liability. The same rules apply to other types of workplace harassment.
Employers or attorneys for employers often retain a qualified outside investigator with no ties to the employer in order to avoid claims by the defense that the investigator was biased and the investigation a sham. The employer’s internal human resources professional may be accused of bias and may not have the legal knowledge necessary to ask the right questions and develop the information necessary to afford maximum protection to the employer. Her concern for her own future with the company may cloud her findings or stifle her candid interview of an organization’s power player. An attorney of the law firm that represents the employer also may have his neutrality challenged. Messy issues of attorney-client privilege also can arise, and the law firm’s ability to represent the employer if litigation ensues may be challenged.
The object of the employer’s workplace investigation is to find out what really happened. The employer must procure reliable facts so that it can make an informed decision about what remedial steps, if any, need to be taken. The investigator may conclude that sexual harassment occurred, that it did not occur, or that it is impossible to tell what really happened. The adequacy and fairness of the employer’s remedial action depends on the investigator’s ability to expose the truth. Only then can employer’s counsel make proper recommendations to the employer concerning the form of disciplinary actions to be taken. Remember, the investigation must be unbiased and thorough in order to cloak the employer with protection. Does the investigator have the legal knowledge and skills to identify and ask key questions of the witnesses? Is the investigator a good listener, courteous, non-threatening, but able to ask the tough questions and stand up to bullies? Does the investigator have the ability to gain the confidence of the witnesses? To challenge them in a respectful manner and treat them in a non-judgmental way, but with a firm hand?
The following investigation guidelines are written from the viewpoint of the retained investigator, after the employer or its attorney has determined the need for an investigation.
- Establish the scope of your investigation. Prepare and obtain a signed engagement letter.
- Establish the attorney-client privilege at the outset of the investigation. Agree upon the procedures to be used during the investigation to protect the confidentiality of communications. Note that recent cases suggest that an employer’s ability to protect the notes and reports of a workplace investigator is very limited, especially if the employer’s response to the harassment complaint is part of its legal defense.
- Establish protocol regarding communications with the employer or witnesses employed by the employer. Consider prohibiting all e-mail communications between you and the company and its employee in order to reduce E-discovery nightmares in litigation.
- Investigate before you meet with witnesses. Before interviewing any witnesses, understand everything you can about the alleged conduct, the people involved, and the culture of the employer. Review available evidence. Obtain the employer’s harassment policy (hopefully, it has one) and determine how it has been published in the workplace (the policy is worthless if it is not made known to those it is designed to protect).
- Identify witnesses based upon present understanding of facts and determine the order in which to conduct interviews. In most cases, interview the alleged harasser last. Determine whether interpreters or other aids are necessary to conduct effective interviews of witnesses.
- Contact witnesses, introduce yourself, describe the nature of your assignment, explain that you are an independent investigator who has been retained by the company, that you are not representing the witness, and ask the witness to sit for an in-person interview at a firm date and time. If the witness refuses to be interviewed, document the refusal and the reason. Arrange for the interview to take place in a private setting where the witness feels comfortable, and where you feel safe.
During the Interviews
- Interview each witness separately.
- Look and act professional. Do not show any leanings toward any side. Remember, you are a neutral and your job is to learn the truth.
- Give the witness your business card and ask her to call you if after the interview she remembers additional information, needs to clarify or recant anything, or has any questions.
- Present the witness with a statement disclosing your role and his acknowledgment that he is submitting voluntarily to the interview. This can avoid claims of false imprisonment, duress, etc. Explain the purpose of the interview and your role as an independent fact-finder. Emphasize that the company takes complaints seriously and is investigating the charges, including interviewing all potential witnesses in compliance with policy. Reaffirm that you are not representing the witness and that the statements made by the witness to you are not protected by an attorney-client privilege, an “Upjohn warning”
- Address issues of confidentiality, consistent with the matter at hand. For example, you may tell the witness that, to the extent possible, the matters disclosed in the interview will be disclosed only to those with a “need-to-know”within the company or, perhaps will be disclosed only to the company attorney with whom you are dealing.
- Advise the witness not to discuss the content of the interview with anyone else. Explain that your goal is to ascertain what happened, and that by talking to other potential witnesses, the witness may unwittingly influence the recollections of other witnesses.
- Explain that retaliation will not be tolerated and that the witness should contact you immediately if retaliation is suspected.
- Ask open-ended questions and listen, listen, listen. Use silence to your advantage.
- Take very good notes; write down key phrases verbatim using quotation marks.
- Gets dates, times, places, and the names and contact information of other witnesses.
- Dig deep for fine details. Don’t be embarrassed to ask about where, how many times, the degree and nature of the contact. Allow the witness to take her time.
- Explore the effect of the alleged harassment (psychological, emotional, financial).
- Establish whether the witness has any physical or other evidence of the incidents (e.g., diaried notes, e-mails, text messages, etc.); collect documents from witness.
- Determine whether the witness is aware of company anti-harassment and reporting policy.
- Ask the complainant if s/he can continue to work with the alleged harasser
- Ask the complainant what s/he would like the company to do.
- Do not give your opinion about the credibility of other witnesses, whether or not you think the conduct in question amounts to harassment, etc.; reaffirm, as necessary, that you are a fact-finder and a reporter of findings to the employer, not someone who decides outcomes.
- Tell the witness that you will prepare a summary of the interview, provide the witness with a copy, and allow the witness to correct any statements and add additional information.
- Establish that you can contact the witness after the interview if you have further questions.
- Cross-reference interview results with information developed from other interviews, verifying and confirming results where possible.
- Circle back to witnesses, and conduct second interviews with the complainant or others if other interviews or evidence raise new questions.
- Prepare detailed summaries of interviews, including evidence provided by witnesses.
- Provide witness with a summary of the interview and evidence provided, and confirmation that they have the right to make corrections to the summary, etc.
- Make witness credibility determinations. Factors include bias, internal consistency, nonverbal cues, details, plausibility of accounts, prior misconduct, corroboration by others.
Report of Findings
- Prepare formal report to employer or counsel for employer, including the timeline of material events in the investigation (hopefully, this will show that the employer moved with due speed and conducted a thorough investigation after becoming aware of the harassment complaint), summary of allegations, investigator’s findings and credibility determinations, interview summaries, credibility reports, and physical evidence.
- Consistent with scope of engagement, follow up with relevant witnesses to determine whether harassment has stopped or retaliation is occurring.
Margherita Albarello has represented employees and employers in Title VII and similar anti-discrimination laws since 1987. Her representation of employees and management maximizes her effectiveness as a neutral and objective investigator of allegations of sexual and other forms of workplace harassment or discriminatory misconduct.