Do not assume that just because you and your team are highly skilled fraud investigators that those same skills will provide you with everything you need to conduct adequate workplace harassment investigation.
Investigating workplace harassment can be one of the most challenging tasks for a Loss Prevention professional to undertake. Conducting a timely investigation that is accurate and fair to all parties and properly documented is an unmatched professional accomplishment. A flawed investigation can lead to numerous problems. The increasing prevalence of harassment lawsuits and subsequent liability for business organizations has put the investigation under scrutiny. If your investigation is determined to be inadequate, your company’s risk of liability will significantly increase along with the potential for larger damage awards.
As fraud investigators we tend to live in the ‘black and white’ world of ‘thief and victim’; the person who stole ‘it’ and the business that suffered the loss. When we conduct fraud or loss investigations we are on fairly solid ground when we frame our investigation this way. Our job, though challenging, is straight forward. We need to ‘catch’ the person responsible for the loss.
One of the most critical mistakes a fraud investigator can make in a workplace harassment investigation is to transpose the familiar ‘thief and victim’ into ‘harasser and victim’. Framing a workplace harassment investigation in ‘black and white’ terms may lead the investigation into a course of action that is difficult to reverse. Labeling the complainant as a ‘victim’ assumes the guilt of the other party to the complaint. It also sets the wrong expectations. The company’s leadership may assume, due to the connotations of the language, that the investigator’s job is to help remove the alleged harasser, rather than provide objective information from which to reach a sound decision. We therefore must be cautious in the framework created by labels to avoid creating an environment that makes it difficult to clear a wrongfully accused individual. The best approach is to begin with unbiased language. There is a harassment complaint; the complaint is made by the ‘complainant’ and the response from will come from the alleged harasser, or the ‘respondent’. Approaching workplace harassment investigations in terms of ‘complainant and respondent’ sets the stage for a fair and unbiased investigation. As simple as this seems, it will often fall to the investigator to reinforce this unbiased approach throughout the organization.
The following is a general guide to conducting interviews with complainants and respondents and is not intended as an all encompassing guide for workplace harassment investigations.
- General Suggestions for Conducting Interviews.
- You should be sensitive to gender issues in the investigative process. For example, male investigators may wish to offer a female complainant the option of having a female present during the interview. The same principle applies if the complainant is male and the investigator is female.
- Prior to any interviews, create a list of key questions raised in the complaint. This list will ensure all critical elements are covered in the interviews.
- It is recommended that you make notes during the conversation or immediately after to assure accuracy. Keep these notes in a separate file, not in a personnel file.
- Don't voice opinions, make assumptions, or reach conclusions until the investigation is completed.
- Don't promise anything or guarantee any specific results.
- Don't ask leading questions or multiple choice questions.
- Don't guarantee confidentiality (you can't resolve the complaint if you can't talk to anyone about it).
- Review briefly with the person being interviewed what he/she has told you.
- The Complainant Interview
- Your demeanor should be open, concerned and non-judgmental. Be ready to listen and take the report seriously.
- Keep in mind that the person is under stress and possibly afraid of retaliation. The person should be assured that retaliation, whether directed against the complainant or against co-workers, will not be tolerated. Assure the complainant that only those who have "a need to know" will be told anything. Who must be told is decided on a case by case basis and generally includes upper management and witnesses, to the extent necessary to obtain information.
- Find out what happened. In particular, ask the complainant:
- When and where did the behavior occur?
- Who was involved? What can you tell me about this person (description, employment, name, phone number, etc.)?
- Were there any witnesses?
- Did you talk with anyone about what happened?
- Has something like this happened before?
- How long has this been going on? Do you keep a journal or any other record where you wrote about what happened?
- What was the effect of this behavior on you?
- Did you indicate that the behavior was unwelcomed? How?
- What was that person's reaction to what you said or did?
- What do you want as the outcome?
- If you believe there is a need to consult with witnesses, you should ask the complainant for the names, addresses and phone numbers of people who are knowledgeable about the situation. You, not the complainant, should contact the potential witnesses to request interviews.
- The Respondent Interview
- Use tact in announcing the reason for talking to the respondent. The person should be told there is a serious matter to discuss.
- Reassure the person of due process. He/she may be under stress. Again, your demeanor should be open, concerned and non-judgmental. Inform her/him of the allegations.
- Ask for the respondents’ account of the situation.
- Follow a pattern similar to the interview with the complainant, remembering to gather facts and not make judgments. Make sure to include the following statements during the initial interview:
- That retaliation is forbidden and may cause additional charges against the alleged harasser.
- That the complainant will be informed about the alleged harasser's verbal account, or will see a written one.
- Ask the respondent for the names of witnesses and other knowledgeable people. The respondent does not have the right to confront the complainant directly, or to know which persons are interviewed, or to be present at interviews. You, not the respondent, should contact potential witnesses.
The goal of investigating alleged workplace harassment is to provide the organization with accurate and well documented information. The professional fraud investigator has the skill set to get the job done well. A strong partnership between the Human Resources, Legal and Loss Prevention Departments while conducting harassment investigations will provide the best protection for your employees and your business.
John Fice, Chief Operating Officer, LP Innovations Inc