The investigation report should outline the findings of the investigators and should describe how the investigation was conducted. Because the report may be evidence in future proceedings, the report should be written in a way which clearly and persuasively supports the ultimate findings that were made. For example, if credibility was a determinative factor, the report should identify how and why one person, or one description of events was more credible than another. Additionally, the findings should not be written in legally conclusory terms (e.g. “hostile work environment,” “discriminatory,” “sexual harassment”). Rather the findings should be couched in terms of the specific unacceptable conduct at issue.
Because an employer may be called upon to show how it responded to claims of harassment, violence and discrimination long after the fact, the final investigation report, all supporting notes and memorandum generated during the investigation, and documents relevant to any corrective action taken should be maintained in a final workplace investigation file. This file should be maintained separately from any employee’s personnel file.
An employer typically learns of inappropriate workplace behavior through an employee complaint. The first step an employer must take during the investigation is to ascertain as much information about the allegations as possible.
The employer should then:
- Introduce investigators and explain their authorization to conduct the investigation;
- Identify the scope of the investigation;
- Explain to the interviewee that they are required to fully cooperate and that retaliation against any employee for filing a complaint or participating in the investigation is prohibited;
- Explain the process – interviewing several people and a need to re-interview if new information comes to light;
- Explain there will be a need to review documentation;
- Explain that management will make the decision about necessary action after reviewing the investigation report;
- Explain that information gathered will be kept discreet to the extent possible;
- Explain that the notes of the interviewers are the record of the investigation and the interviewee will be asked to sign and date the notes following the interview; and
- Make it clear that the interviewee is not to discuss the investigation with others within the organization or to the public.
The person receiving or handling the complaint should ask the complaining employee these questions during the investigation:
- What happened?
- When did it happen?
- Where did it happen?
- How did it happen?
- Has it ever happened before?
- Has it happened to anyone else?
- Who was present when it happened?
- How did the behavior make you feel?
- Have you talked with anyone about the incident(s)?
- To what extent was the behavior welcome or unwelcome?
- Was it conveyed to the alleged harasser that the behavior was unwelcome?
- Is there any other information (documents, memos, e-mails etc.) you may have that would substantiate the allegations?