You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Interviewing the Accused

At the beginning of the meeting, the investigator should:

  • Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
  • Identify your role as investigator.
  • Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
  • Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may have relevant knowledge.
  • Explain that efforts will be made to share information on a need-to-know basis only, but do not promise confidentiality.
  • Explain the expected investigation procedure and the expected time frame involved.

During the Interview, the investigator should:

  • Explain the details of the allegations against him/her (the investigator need not disclose the source of the information, but usually should disclose the allegations in enough detail so that the accused can respond). Ask about the alleged conduct/comments first, before identifying the complainant.
  • Obtain the accused’s account of what occurred, as specifically as possible. (Depending on the circumstances, it may be helpful to get this account in writing from the accused.)
  • Ask the accused to identify potential witnesses and whom he/she thinks should be interviewed and what information each witness is expected to provide.
  • If the accused maintains that the complainant is lying, question the accused regarding the complainant’s possible motivations. By asking an open-ended question about the complainant’s possible motivations, the interviewer may discover whether the accused ever had a consensual relationship with the complainant, whether the complainant recently received a bad review from the accused, etc.
  • If the accused says the conduct was welcome, ask for the facts (e.g., what made him/her believe that the conduct was welcome?).
  • Determine whether there is any physical evidence (e.g., letters, notes, e-mails, etc.).
  • Find out whether the accused is familiar with and has seen the Company’s no-harassment policy, and whether the accused has ever had any harassment training.
  • If you have determined that confidentiality is required, tell the accused to maintain confidentiality within the workplace about the investigation, so that the result will be as reliable as possible, and not to talk with anyone about the investigation.
  • Tell the accused about the Company’s no-retaliation policy, and that the complainant and all the witnesses will be told about it.
  • Ask the accused what steps he/she thinks should be taken to ensure a thorough investigation.
  • The investigator should make a credibility determination at the time of the interview and note any witness behaviors affecting credibility (e.g. refusal to answer questions directly, inconsistent responses, etc.).
  • Tell the accused that you will advise him/her when the investigation is concluded.

Interviewing Other Witnesses

It is important to interview all persons identified by the complainant and the accused as having relevant knowledge. If any of the other witnesses suggest others who may have knowledge, the investigator should interview those persons, too.

When interviewing other witnesses, the interviewer should cover the same basic areas as were covered with the complainant and the accused.

While interviewing other witnesses, an investigator should try to be aware of biases by asking, for example, whether anyone else has already spoken with the witness about the situation. Find out whether the witness is either a friend of, or has a bias or hostility towards, either the complainant or the accused.

The goal of witness interviews is to obtain the witness’ first hand knowledge of what occurred, being as specific as possible. For example, if the witness did not see an alleged incident, the witness may have seen conduct immediately after the incident that could have a bearing on whether the incident occurred.

If you have determined that confidentiality is required, the investigator should direct the witness to maintain confidentiality, and should consider having the witness sign an agreement to keep the matter confidential.

As with the complainant and the accused, the investigator should make a credibility determination at the time of the interview and note any witness behaviors affecting credibility (such as refusal to answer questions directly, inconsistent responses, etc.).

Each witness should be told that he or she will be advised when the investigation is concluded.

The next post in this series addresses note-taking techniques and tips for assessing witness credibility.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their policies and procedures for handling harassment complaints. If you or your organization would like more information on best practices for investigating complaints of harassment or any other employment issue, please contact an attorney in the Labor and Employment practice group.