Employer Strategies for Interviewing Claimants of Sexual Harassment

An employer should start any meeting with the complaining individual employee or purported victim of sexual harassment by explaining the objective of the meeting. All efforts must be made to make the employee comfortable. We recommend employers focus on the fact that this investigation is intended to look into the allegations that have been made. The employer should not promise confidentiality to the purported victim and explain why it cannot be confidential. Should this complaint turn into a lawsuit, records of the internal investigation may become the keys to winning the action.

The real purpose of the first interview is to obtain details. Consider asking the complainant to write down, either before or at the start of the interview, all incidents of improper conduct and all facts and witnesses which establish that they occurred. Obtain a complete list of each act and each statement that the individual construed as sexually harassive, offensive or constituting a hostile environment. Once each act has been disclosed, obtain more details. For each act and for each statement, determine:

• When did it occur?

• Where did it occur?

• Who was present when it happened?

• Exactly what happened, or exactly what was said?

• What conversation occurred with the harasser before the incident occurred or what statement was made?

• What was the response of the complainant when the act was occurring or the statement was being made?

• What was the response when the act or statement was concluded?

• What was said the next time the complainant saw the harasser?

• Did the complainant ever indicate that he/she was offended or somehow displeased by the act or statement?

• When did the complainant indicate his/her displeasure?

• Did the complainant ever specifically ask the harasser to stop?

• If not, why not?

• Did the complainant ever specifically say that he/she found the conduct to be offensive or to constitute sexual harassment?

• What did the complainant do to show his/her displeasure?

• What was the harasserbs response to the complainantbs act or statement?

• Did the complainant speak with anyone else about the offensive behavior or statement?

• With whom did the complainant speak?

• When did this conversation take place?

• What did the complainant and he/she say?

• Did the complainant ever make any notes or record of the incident?

• Did the complainant tape record it?

• What do the complainantbs notes or recordings say?

• Where is a copy?

• Will the complainant give it to the employer?

• Was the complainant able to continue with normal activities afterwards?

• Did the complainant ever seek medical treatment or counseling?

• Also ask questions regarding the internal processes of the company, including:

• When did the complainant learn of the companybs sexual harassment policy and complaint procedure?

• To whom did the complainant first report the offensive incident or statement? [And if complainant waited, ask why.]

• What action does the complainant want the company to take?

• Why this particular action?

• Does the complainant believe he/she can work with the harasser? If so, is there anything that can be done to help the complainant in resuming a positive working relationship? If not, why not?

Review important points before concluding the interview, including a review of all notes that have been taken. It may also be helpful to follow up the interview with a written declaration setting forth the information that was provided. A document signed by the complainant can be helpful in ensuing a thorough investigation, discrediting later inconsistent claims and in responding to subsequent legal claims.