Thursday, September 22, 2016

Harassment Investigation Techniques

In a recent post, we talked about how digital technology can provide a platform for sexual harassment in the workplace. Today, we want to focus on the investigation of complaints of sexual harassment, including a review of the resources—some old standbys and some new technology—that can assist employers in carrying out their investigative responsibilities.
It’s generally well known that federal law, as detailed in EEOC guidelines,  requires employers who  know or should know of possible harassment to promptly investigate and, if harassment appears to have occurred, to take timely and appropriate remedial action in response. Many state laws also impose a duty to investigate harassment complaints and concerns. In case after case, courts have held that employers’ failure to promptly investigate complaints of harassment may result in liability for sexual harassment.  It’s important for employers to remember that the obligation to investigate arises even when the term “harassment” is not specifically used by a complaining or concerned employee. Employers are expected to use reasonable judgment in identifying and responding to possible harassment.
The investigation of a complaint of sexual harassment need not be limited to interviewing the alleged harasser and the apparent victim.  Indeed, ending an investigation there often leads to conflicting accounts of the facts and circumstances and the employer’s inability to come to a conclusion about who’s telling the truth.  That’s why it’s important to consider and, if appropriate, turn to the following sources of relevant information: 
  • Personnel records.  Does the alleged harasser have a history of similar complaints? Does the apparent victim have a history of making complaints? Such information may not be conclusive or even particularly enlightening, but an employee’s history of dealings with other employees can help the employer make a judgment about credibility.
  • Witnesses and other employees with relevant knowledge.  If the alleged harassment took place in front of witnesses, it’s important to know what the witnesses saw or heard.  Even if no-one witnessed particular acts of alleged harassment, employees familiar with the general conduct of and relationship between the complaining employee and the alleged harasser can often provide important information and insights to assist the employer in determining what occurred.
  • Managers’ and supervisors’ perceptions of credibility.  Even when involved managers and supervisors don’t have direct knowledge about alleged harassment, they may have history with the complaining employee or alleged harasser that will assist in determining who is likely to be telling the truth.
Beyond these basics, technology can provide important information.  No workplace is likely to have all the tools listed below at their disposal, but many workplaces will have some.  A thorough and unbiased investigation requires that the employer use all reasonable means at its disposal to investigate claims of harassment, so if these tools are or can be available, their use should be considered: 
  • Email and internal messages. Email can provide lots of information to support or disprove allegations of harassment.  Beyond emails containing inappropriate communications from the alleged harasser to the complaining employee, an employer’s email records may contain evidence that the complained-of conduct was actually welcome or invited, or evidence that the complaining employee was not the only victim of harassing communication.  Email and instant messaging searches should be set up to cover all relevant times and all potentially relevant sources, including communications from the alleged harasser and complaining employee to third parties.  If an employer’s information system allows targeted word searches, the time and effort involved in reviewing email for relevant content can be reduced.
  • Social media.  Although employers must exercise care in accessing employees’ social media, and should generally not ask for access to private social media accounts, a review of publicly available social media may provide relevant information about the relationship between the complaining employee and the alleged harasser, as well as examples of inappropriate communication between the two or with other employees.
  • Monitoring technology.  Employers can and should determine if any visual monitoring devices or devices used to track employees’ locations can provide information relevant to the complaint under investigation.  Interactions may have been caught by monitoring cameras, and location tracking devices may prove or disprove assertions that an employee was at a certain place at a certain time. Even a review of time records can sometimes be helpful in determining whether the employees involved in the allegations were at work at relevant times.
  • Data Analysis. Software is available that can search and classify large quantities of data, including electronic communications, to quickly identify relevant communications and patterns. Such tools, while not common in the workplace, are available from outside vendors and can be of great assistance in investigations that involve a large quantity of information and data. Such data analysis can take place entirely behind the scenes and without disrupting day to day operations.  If the stakes are high enough, it may be appropriate to include such data analysis in an investigation. 

In a future post, we will address what it means for an employer to take timely and appropriate remedial action in response to the results of an investigation.  A clear anti-harassment policy, the prompt and effective investigation of all complaints, and swift remedial action are the three essential elements that are required if employers wish to avoid—or at least minimize—their liability for workplace harassment.