Investigating Sexual Harassment Complaints
Procedures for Investigations
by Bernice R. Sandler

Should respect rights of all parties.

Should include basic due process:

•   Before disciplinary action is taken, the harasser is given timely and adequate notice of what the allegations are, and an opportunity to respond to them before a neutral person or panel.

•   Should be fair to both parties. Procedures should apply equally to both parties, i.e., if one is allowed to bring an attorney, so should the other be allowed to do so.

•   Persons investigating or making decisions should have no conflict of interest preventing them from acting fairly.

•   Procedures should be timely -- there should be time frames for all procedures. Investigations that are delayed in starting or take a long time to finish diminish trust in the procedures.

•   Investigations should begin within a few days of a formal complaint being filed, and should be completed in approximately two weeks if possible.

•   Confidentiality , while never absolute, should be honored to the extent possible and under law, keeping in mind that neither the complainant nor the alleged harasser are bound by confidentiality, although they can be asked to observe it. Many people believe that when formal procedures have resulted in a finding of sexual harassment, the harasser's right to privacy is forfeited. Others disagree.

CHARACTERISTICS OF A GOOD INVESTIGATOR

Should have knowledge and training in issues dealing with sexual harassment, including understanding of relevant legal issues.

Should be familiar with the institution's policies dealing with sexual harassment.

Should have credibility with institutional community.

Able to make tough decisions regarding truthfulness and credibility of parties and witnesses as well as making tough recommendations when someone has been found guilty of violating the policy.

Able to be neutral and represent the institution in a fair manner.

Should be fair and not reach a conclusion until the investigation is finished.

Should be able to maintain confidentiality.

Should refrain from doing counseling with parties, and refer them elsewhere if counseling is needed.

Able to be sympathetic in a neutral way.

Should be non-judgmental and not defensive.

Should be able to maintain complete written records of all information, interviews and determinations.

Should be able to work as part of a team.

Should be willing to make sure that immediate action is taken when necessary, such as removing offensive materials or graffiti from a wall, or obtaining protection for someone who is being stalked.
 
PRIOR TO AN INVESTIGATION

Assess whether the complaint is amenable to informal resolution and whether the complainant wants to attempt informal resolution, such as writing a letter to the harasser. If informal resolution is being attempted, there many not be a need for an investigation, e.g., the complainant decides to write a letter (see HANDLING SEXUAL HARASSMENT WHEN IT HAPPENS TO YOU and the harassment stops.

All formal complaints require an investigation.

Assess whether the complaint is so serious (for example: sexual abuse or assault, attempted assault; possibility of physical danger) that the institution must intervene, even if there is no formal complaint. (Note: In Davis v. Monroe County Board of Education, 1999, the U. S. Supreme Court ruled that educational institutions covered by Title IX are required to take steps to address complaints about student-to-student harassment when the school has actual notice. "Deliberate indifference" to such a complaint can expose the school to liability. When employees are harassed, institutions and organizations that "know or should have known" that harassment was occurring are obligated to respond.)

Assess whether the complaint is timely. The time for responding to a complaint should be able to be extended for good reason, e.g, the complainant was seriously ill, or was told by a supervisor that she ought to be able to handle it herself.

Even if the complaint is not timely the institution may still need to take action; Someone in authority might speak to the alleged harasser, insist that the person attend training about sexual harassment, and/or, inform the alleged harasser that a sealed envelope will be put in his or her file that will not be opened unless there is a subsequent complaint.

Assess whether the complaint presents a sexual harassment issue. For example, "He only promotes men." is not sexual harassment but still is discrimination, if accurate. The institution would still need to respond to the complaint, although not under sexual harassment procedures.

Be careful on rejecting complaints. Do not assume the person is "overly sensitive" or that the complaint is "frivolous." It is better to investigate if the complaint contains any information about behavior which can be considered sexual.

Write up a report on rejected complaints and talk to the complainant about why the complaint was not accepted.

Determine what to do about anonymous complaints. To the extent possible, the institution needs to respond to anonymous complaints. If neither the victim or harasser are identified and there is no information with which to follow up, as in "My professor is a sexual harasser who has made many of us feel very uncomfortable," there may be nothing you can do.

Some anonymous complaints include information which can lead to identification of an individual or pattern of behavior, as in "I"m the only woman who was willing to speak out about the professor's sexual behavior in English 101, and I was treated so badly I had to drop out of the class in the middle of this term." With some searching, it might be possible to locate the student as well as identify the faculty member so that some additional action could be taken.
If the harasser is named in an anonymous complaint, the institution needs to do something, and can investigate to see if more is needed, in which case the institution may be able to file its own complaint against the alleged harasser.

At the very least, inform the alleged harasser about the complaint, offering it as
information and not as an accusation. Also give the person a copy of the policy. Informing the object of an anonymous complaint is important because:

It may stop the behavior.

Informing the alleged harasser may protect the institution from liability; it at least tried to stop the behavior.

If the complaint is false, it alerts the accused person to be more cautious.

Anonymous information by itself cannot be a cause for discipline. However, cumulative anonymous information about a particular situation or individual may be enough to trigger an investigation.
 
PLAN THE STRATEGY FOR THE INVESTIGATION

Set up confidential files if this has not already been done. The file should contain a record of all complaints, by complainant's name and name of harasser. Include copies of all relevant policies including those that might also cover sexual harassment such as "ethical standards for faculty," an honor code, etc. Develop a list of who has access to this file.

Identify issues that need to be decided.

Identify witnesses that need to be interviewed.

Identify documents that need to be obtained.

Prepare a list of general questions for each interview. Many questions or a sequence of questions will be repeated for each witness.

Identify someone to notify alleged harasser of complaint if not already done, including giving the alleged harasser a copy of the complaint, and asking him or her to avoid any unnecessary contact with the complainant. Inform the alleged harasser about the prohibition of retaliation, including examples of retaliation.

Inform complainant about retaliation, give examples, and ask her or him to report it immediately should it occur.

Identify other parties who need to know about the complaint and the investigation such as the relevant Vice President and the alleged harasser's supervisor. Remind them about confidentiality -- only those with a need to know should be informed. Remind them about retaliation and that if they observe it to inform someone so that it can be stopped. Remind them that there can be no discipline until and unless the investigation has been completed and a finding of violating the policy has been made.

Inform counsel about the charge and the investigation.

Depending on the nature of the complaint and the comfort of the complainant, there may need to be a temporary reassignment of the alleged harasser to reduce contact between both parties.

Set up a time-line:

•   When interviews will be conducted.

•   When notes for each interview will be transcribed and typed.

•   When a decision will be reached.

•   Completion of investigation process.

•   Notification of parties and others with a need to know.

•   Allocate responsibilities.

•   Who is the lead person for the specific investigation?

•   Who will set up appointments?

•   Who will interview and who will take notes at each interview?

•   Who will arrange for interview rooms?

•   Who will maintain the records?

•   Who will inform those who need to be informed both before and after the investigation?

•   Who will communicate with counsel and top administrators when needed?

•   Who will monitor the time-line to see if it is on-time or to make adjustments?

•   Who will talk about confidentiality to support person(s) who will be involved with the confidential files?

•   Insure that members of the team have no bias or conflict of interest (such as a personal or professional relationship with the parties).

•   Insure that the team understands confidentiality.

•   Insure that the team understands they are not to talk to the press. The team should know who is the person who will talk to the press about what is happening (should not be a member of the investigating committee.)

•   Determine who will review the records of interviews and make the final decision: e.g., the entire committee or just those who did the interviewing and note-taking.

•   Determine who will write the final report of the investigation.

What to do if the complainant also files with the U.S. Equal Employment Opportunity Commission, the State Fair Employment Practices Commission, The U.S. Department of Education Office for Civil Rights, or goes to court? The fact that someone filed a complaint elsewhere is not a reason to stop the investigation. To do so might be considered as retaliation.

WRITTEN RECORDS

Remember that the records could become public as part of a future legal proceeding or in response to a freedom-of-information requests under state public documents laws.
Records should reflect what you find out, not conjectures or speculations: "During the interview he was very uncomfortable, tapped his hands and blinked excessively" -- NOT "He looks like a liar to me." Describe the behaviors, rather than your feelings or opinions.
Record non-verbal behavior, such as inappropriate laughing or gestures that contradict the spoke word. Record specific behaviors that suggest that the person may have been under the influence of substances that might affect recall, judgment or the ability to comprehend questions.

Remember that all records are confidential.

Inform the person who types the records and/or maintains the files about the need for confidentiality. Try to have only one person, if possible, to maintain the files.

Lists of questions that team members have for counsel may be protected and therefore need not appear in the confidential file.

If the time-line is revised, a written record should be kept of the revision and the reason for it.

Records of all interviews and all contacts with complainants, alleged harassers and witnesses should be written up within a day or so.

Some interviewers ask the person interviewed to review the notes and sign that they are accurate.
 
ABOUT INTERVIEWING

Both the complainant and the alleged harasser should be allowed to bring someone with them. Some schools provide "advocates." The "advocate" is allowed to talk with the person but not participate in the hearing directly. Sometimes attorneys are allowed to be present. (The policy should state whether they are allowed). If attorneys can be present, they should not be allowed to participate directly in the investigation but can communicate with their client at any time. If they participate in the interview, they should be reprimanded and told that if it happens again they will have to leave.

One member of a two-person team should ask the questions and the other should take notes.
Meet separately with the complainant, the alleged harasser and all witnesses in a private setting.

Allow sufficient time for each meeting, at least one hour.

Develop, in advance a list of questions:

Name of alleged harasser

Relationship of complainant and alleged harasser

Details of the alleged misconduct

•   date and time

•   place

•   circumstances

•   witnesses

Effect of the alleged harassment on the complainant

Complainant's response to the incident before and after filing the complaint

Alleged harasser's reaction to complainant's response

Be sympathetic in a neutral manner -- "This is hard to talk about." "I know this is difficult for you."

Do not be afraid to be silent after you have asked a question or if the person is upset. You can give them some reassurance, ("I'm sorry this is hard for you") and then wait silently for them to be ready to talk again.

Give all parties the opportunity to ask questions. Record the questions asked and try to answer in ways that communicate the fact that the institution takes sexual harassment very seriously.

Interviews can be tape-recorded if the person being interviewed agrees.

Do not ask questions about prior or current sexual conduct or activities of the complainant.
 
INTERVIEWING THE COMPLAINANT

Thank the person for coming.

Explain process of investigation in a supportive manner. Seek the person's cooperation.

Reassure the complainant that all information will be kept confidential to the extent possible and that no retaliation will be permitted.

Be aware that the experience of being interviewed is stressful and may lead to anxiety and to defensiveness.

Use open-ended, non-leading, non-judgmental questions.

After asking about the incident(s), ask complainant if there are any documents such as journals, calendar entries or notes, or if anyone they know who has information about the complaint, including:

•   Those who observed or might have observed the incidents or have knowledge of them;

•   Those who were told about it by the complainant;

•   Those who observed the victim's reactions or changes in behavior by either party.

Ask if there is anything else the person would like to add.

Reassure the complainant again that you will maintain confidentiality to the extent possible and that retaliation will not be permitted. Give some examples of retaliation and ask the complainant to report them to you or other person in authority should there be any retaliation during or after the investigation.

Ask how the complainant would like to have the matter resolved, but do not promise any specific results. Ask the complainant if there are any questions he or she would like to ask about the procedure.

Inform the complainant about how long the investigation is likely to take, without committing yourself to a rigid time schedule.

Inform the complainant that he or she will be notified about the decision.

Thank the complainant again for coming.
  
INTERVIEWING THE RESPONDENT

Thank the person for coming.

Assure the respondent that they will have an opportunity to tell their side of the situation.

Explain process of investigation in a supportive manner. Seek the person's cooperation.

Be aware that accusations of wrongdoing, whether accurate or not, may lead to anxiety and to defensiveness.

Reassure the alleged harasser that all information will be kept confidential to the extent possible and that no retaliation will be permitted.

Assure the respondent that they will have an opportunity to tell their side of the situation.

Use open-ended, non-leading, non-judgmental questions.

If a copy of the complaint is given to the alleged harasser, be sure that identifying information has been blackened out. The complaint might contain information that could be construed as defamatory to the accused and others, and if the accused disseminated the complaint, it could create liability for the institution.

Do not share witness statements with the accused although you will want to review the material they contain with the respondent.

Give the accused the opportunity to comment.

If the person denies the allegations, ask for whatever explanation he or she has as to why the complaint may have been filed.

After questions have been asked about the incidents, ask if there are any documents such as journals, calendar entries or notes, or if anyone they know who has information about the complaint, including:

•   Those who observed or might have observed the incidents or have knowledge of them;

•   Those who were told about it by the complainant;

•   Those who observed the victim's reactions or changes in behavior by either party.

Ask if there is anything else the person would like to add.

Reassure the respondent again that you will maintain confidentiality to the extent possible and that retaliation will not be permitted. Give some examples of retaliation and ask him or her to report them to you or other person in authority should there be any retaliation during or after the investigation.

Inform the accused about how long the investigation is likely to take, without committing yourself to a rigid time schedule. Ask is there are any questions about the procedure.
Inform the respondent that he or she will be notified about the decision.

Thank the respondent again for coming.
  
INTERVIEWING WITNESSES

Both the respondent and the complainant should be asked whom they would suggest to testify who have knowledge of the incidents or other relevant information.

Character witnesses are not appropriate for sexual harassment investigations.

Sometimes talking to former employees may be applicable.

Sometimes there are no witnesses.

Witnesses may ask who suggested their name, why they are being asked to testify, and want more information about the case. There is no need state who suggested their name. Tell them, in a neutral manner, that there is reason to believe that the they may have information that would be helpful to the investigation. Explain that all the information you have and the information given to you is confidential and will only be shared with those who have a need to know. If witnesses do not want to testify, inform them in a factual manner that you will note that their participation was requested and that they refused to cooperate.

After questions have been asked about the incidents, ask if there are any documents such as journals, calendar entries or notes, or is anyone they know who has information about the complaint, including:

•   Those who observed or might have observed the incidents or have knowledge of them;

•   Those who were told about it by the complainant;

•   Those who observed the victim's reactions or changes in behavior by either party.

Ask if there is anything else the person would like to add or if they have any questions.
 
REACHING A CONCLUSION

There are four possibilities:

The harassment occurred.

The harassment did not occur.

The allegation was unsubstantiated but with probable cause (Some institutions do not allow this as a possible decision.)

Not enough information to make a determination. (Does not mean that the harassment did not occur or that the complaint was false.)
 
CRITERIA FOR WEIGHING EVIDENCE

The criteria is not "beyond a reasonable doubt." That is the appropriate standard for a criminal trial, not for an administrative proceeding in an institution.

The standard is "the preponderance of evidence." Given the preponderance of evidence a reasonable person would conclude that this occurred (or did not occur).
 
WEIGHING THE EVIDENCE

All evidence should be weighed, including factual evidence by witnesses, observations of witnesses' conduct, and circumstantial evidence that supports or negates a witnesses statements or has bearing on the truthfulness of a witness.

When reviewing all interview notes and materials, make a list of unanswered questions or information that needs clarification.

Make a list of all verifiable facts that would substantiate the claim, and see if they can be verified.

Obtain additional needed information if possible.

Make a list of the facts relevant to the complaint that must be true for the allegation to be supported. List the supporting data for each fact that has been obtained.

Evidence presented by a person of authority such as an administrator or supervisor should be given no more credibility that evidence from a student or lower-level employee.
 
 ASSESSING THE CREDIBILITY OF WITNESSES

Changes in the complainant's behavior as a result of harassment would add credibility.

Changes in alleged harasser's behavior as harassment continued or when complainant indicated the behavior was not welcome would add credibility.

Major inconsistencies in testimony would detract from credibility.

If there was a delay in reporting the harassment, an explanation would not detract from credibility (Note: A delay in and of itself would not detract from credibility since many people delay reporting because of a fear of retaliation, not knowing or trusting the policy, fear of being blamed for causing the harassment, not understanding it was harassment, etc.)

Documents such as calendar entries, journals, notes, letters would add to credibility.
Other complaints against the accused would add to credibility.

The fact that a relationship was at one time consensual does not detract from credibility nor is it a defense against a charge of sexual harassment. Consensual relationships can be followed by sexual harassment when one person tries to end the relationship and the other person uses his or her power to intimidate the former lover into staying in the relationship.

The fact that the alleged harasser did not intend to harass the complainant is not a defense to a charge of sexual harassment. It is the act itself that is important, not the intent of the person who engaged in the behavior.

Not knowing that the behavior was offensive and unwelcome is not a defense to a complaint of sexual harassment. The fact that the complainant did not tell the alleged harasser that his behavior was offensive does not affect credibility. There is no obligation for the complainant to inform the alleged harasser that his behavior is offensive.

Motivation to lie, exaggerate or distort information should be assessed when there are differences in what was reported or questions about credibility.

Questions to consider:

•   How would a reasonable person react to the incident(s)?

•   What was the effect of the behavior on the complainant?

Note: A decision can be made that harassment occurred even if there were no witnesses to the harassment when the evidence of the complainant is credible.

WHEN TO CONSULT WITH COUNSEL
 
If the harassment is very serious.

If there are questions about legal issues.

If there is a potential or actual violence, threats, stalking, intimidations, attempted sexual abuse or sexual assault.

If either party engages an attorney.

If it looks as if litigation may result.

If there are free speech issues.

If there are freedom of association issues

If there are academic freedom issues.

If multiple harassment is involved.

If a complaint is not timely or is otherwise rejected.

If other information is needed before the investigating team can make its decision.

If there is a negotiated agreement.

Before any written documents are finalized, including letters to complainant, alleged harasser and witnesses, written notice of disciplinary action and a letter of resignation.

(Note: A copy of each formal complaint is routinely sent to counsel in some institutions.)
 
AFTER THE INVESTIGATION

Reach a decision.

Write a report.

If inconclusive, state that serious allegations were made and that if similar allegations are made in the future, appropriate action will be taken.

Who gets a copy of the report?

Persons originally notified about the complaint should receive it with instructions that it not be duplicated or shared with anyone without a need to know, and that it should be kept out of view. However, this may hard to enforce.

It is useful to have a central confidential repository of complaints and findings.
Should the report be given to complainant and alleged harasser? Policies vary; some say yes, some say no, some allow it to be read but not copied, some allow a written summary.

Meet separately with complainant and alleged harasser. (Try to see both within the same day if possible.)

Share the findings and whether the complaint was substantiated or not, and what the recommendations are.

In meeting with harasser, if complaint is unsubstantiated, warn person that if there are subsequent charges the complaint would be given weight against him or her.

Reiterate prohibition against retaliation to both parties, include examples, and encourage complainant to report any examples of retaliation from anyone on campus.

Explain appeal procedure, if any.

Stress privacy, but remember neither of these parties is bound by the institution's confidentiality policy. When talking about privacy, tell them they may want to tell their family and supporters what happened but that you hope they will also tell them that they have been asked not to make the information public. However, many complainants want to tell others about what happened.
  
What else needs to be done:

•   Especially if the complaints has been publicized, the institution will want to make a public statement, hopefully discussing it with both complainant and alleged harasser beforehand.
Sometimes, whether or not a case was publicized it is helpful to hold sexual harassment workshops, particularly in the unit where the harassment occurred.

•   If, after a finding of harassment and the harasser is not terminated, the institution will want to make arrangement so that contact between the two parties is minimized. If it is a work situation, the harasser should be moved (but not promoted).

•   The complainant may be moved only if he or she is agreeable to do so and to a position which is comparable or better. Under no circumstances should the person who complained be pressured to move to another position. Moving the complainant but not the harasser often sparks a controversy because people perceive the harasser as not being punished and the victim as being reprimanded.

•   An accused faculty member who has power over a student who brought a complaint should be removed from continuing that power, even if it means paying tuition for the student for a course at another institution (if the harasser is the only one who teaches it at your institution).
 
 
WHAT IF A HARASSER WANTS TO RESIGN BEFORE, DURING OR AFTER AN INVESTIGATION

Sometimes a person wants to resign (or retire) before, during, or after the investigation. (Usually, this will be a result of discussions with counsel.) If so, the institution should attach conditions to the resignation.

The employee should be told that a letter will be placed in his or her file stating that the person resigned while an investigation of sexual harassment was pending [or after he or she was found guilty] and that this letter will be sent to anyone asking for a recommendation. (Be sure to notify all persons in his or her unit/department that they cannot give a recommendation without this information and that they need to notify Human Resources (or the appropriate office) is they are asked to give a recommendation.)

Sometimes, as part of a settlement or resignation of a faculty member, the harasser agrees never to teach again.

Obtain a waiver of any and all claims he or she has against the institution (have counsel draft this).

Discuss and work out what both parties will say. Most institutions say little, although that often leaves them vulnerable to criticism that nothing happened, especially when the harassing incident(s) has been publicized. It is better to publicly state that there was a finding of sexual harassment and to describe the discipline. More details do not have to be given. Working out a statement about this with the complainant often leads to the complainant's having less need to tell people what happened.

Appoint one person to deal with the press.

Inform the complainant about any agreement made with the harasser and any discipline imposed. Although she or he does not need to see the agreement, the complainant should be informed about its major terms.

If the person does not resign, in most public institutions he or she usually has a right to a hearing before any discipline is imposed unless the person is a probationary employee or at the end of a contract.

Document any interview(s) with complainants and respondents in writing.
 
WRITING A REPORT ON THE FINDINGS

The report should include the following information:

•   Introductory data: Complainant's name, respondent's name, type of complaint, date filed, name of office which received complaint and names of investigators.

•   Background information: The history of the relationship between the parties and other details surrounding the complaint, such as what unit or office each works in, how long they have worked there, etc.

•   Summary of the complaint: the specific allegations.

•   Findings from the investigation concerning each allegation.

•   Conclusions: whether or not sexual harassment occurred.

•   Recommendations for corrective action.

•   Right to appeal, including name of person to whom the appeal is addressed, time limit for appeal and conditions of appeal.

•   Signature of investigators and date of report.

*  *  *  *  *



Bernice R. Sandler, Senior Scholar in Residence at the Women's Research and Education Institute, consults extensively with institutions and others about women's equity, including sexual harassment, discrimination, and the chilly climate. She has given over 2000 presentations, written many articles, and serves as an expert witness in discrimination cases. Sandler can be contacted at:

Bernice R. Sandler
Senior Scholar, Women's Research and Education Institute
1350 Connecticut Avenue, Suite 850, Washington, DC 20036
Phone: 202 833 3331   Fax: 202 785 5605
E-mail: sandler@bernicesandler.com
Website: bernicesandler.com