Sometimes a workplace harassment investigation can be like finding a needle in a haystack. At least they’re not always easy. But what’s important is that you prepare yourself as quickly as possible once the complaint comes in and at the same time do not rush to finish the investigation without looking at all the leads.

The goal of the harassment investigation is to gather the facts necessary to reach a rational conclusion.

Here are some guidelines on how to do that:

Form the Team

First, you need to make sure you have the right people involved. There should be a lead investigator. In some cases you might need multiple investigators. It’s usually best to have one person speak to all of the witnesses. But that doesn’t mean there won’t be other people involved. Managers may need to provide information, provide coverage, or make arrangements for witnesses. IT professionals may need to help you access data and information on computers or other devices. You might even need to talk to the union and its representatives in some cases where members of bargaining units are involved in the investigation as the complaining party, witnesses, or the alleged harasser. And, of course, I have to mention that you should consider whether you need your attorney involved.

Interview Witnesses

In almost every harassment investigation you should start with the person who is complaining of harassment or is the victim of the harassment in the event where someone else actually made the complaint or raised the concern. But then you’ll speak to other people who saw what happened, heard what happened, or to the people that were involved in the incident. Eventually, you will speak with the alleged harasser or perpetrator.

There are different ways to handle all of those witnesses, but primarily the idea is to get all of the information. Not just the information you want or the information that you think is going to support the conclusion that you feel like you need to reach. But you’re trying to gather all those facts so that eventually later on when you get to sit down and decide what to do, you’ll be able to reach well-reasoned conclusions.

Gather Evidence

There’s also physical evidence. We don’t want to forget about that. Sometimes this is just an email exchange. It could be something else tangible or something handwritten that was posted somewhere—maybe pictures that were put up in the workplace or transmitted electronically. Don’t forget about any of these components of the harassment investigation.

You do want to get going quickly, but you don’t want to miss anything that is relevant to the outcome. So, this is kind of a wash, rinse, and repeat process. You’re going to get some information, think about it a little bit, and then decide whether you need to get some more information. Then, you may have to go back to witnesses, and you might need even need to speak to some people for even a third or fourth time. There may be some additional evidence that you need to track down, etc.

Maintain Appropriate Confidentiality

This is a very important but, also a somewhat tricky topic. Certainly, you want to maintain confidentiality to some degree but, you cannot guarantee absolute confidentiality. Nor can you control everyone involved in the investigation to the extent that you would ideally like to be able to.

So, again, make a point to distinguish appropriate confidentiality from a guarantee of absolute confidentiality. Typically, you should rely on a need-to-know standard.

As an investigator, you might hear, read, or look at some unpleasant things. Unfortunately, you can’t shy away from that if it means getting to the bottom of the situation that you must investigate. And you must get to the bottom of these situations, because it’s too dangerous for all involved to allow misbehavior to continue.

So, as far as confidentiality goes here some strict guidelines:

All managers and supervisors must report any allegations of harassment up the chain of command.

Usually, this would be to the designated compliance officer or harassment officer in an organization. It may be, especially in small organizations, that a particular manager is the person with responsibility for overseeing harassment investigations.

If a manager or supervisor witnesses something that’s inappropriate, they need to take action.

They can’t ignore it or say the person doesn’t really mean it. If an employee comes to a manager and says, “I don’t really want to report this, but I just have to tell somebody. I don’t want anybody to make a big deal of the this, but this is what’s going on,” the manager can’t just stop there and say, “Ok. No problem. I won’t tell anybody.”

They are going to have to let that employee know at least that “I’m afraid I have an obligation to report this event now what you’ve already told me, but please do feel like you can trust me and tell me what you have to say and I will pass it on to the right people. If there are people you don’t want me to share it with let me know that and I will do my best.” Again, we’re trying to avoid any guarantees because we’re not sure, especially at the early stages, what promises can be kept.

Once that happens and a manager or supervisor finds out where there’s a formal complaint filed through some other procedure, the organization must investigate. Once managers have knowledge of some harassment, or even alleged harassment or possible harassment, failure to investigate creates significant legal risk. But more importantly, you know it’s just not the right thing to do to allow inappropriate conduct to continue unchecked.

No one can retaliate.

Throughout the harassment investigation process and beyond there must be an emphasis on avoiding retaliation. Once somebody has complained, the law protects them from retaliation. As an investigator, tell whoever is making the complaint that the organization doesn’t tolerate retaliation and if they suffer any retaliation or fear they are suffering retaliation they should report that immediately. You share the same message with other witnesses that you speak to. You also, of course, let them know (including the target of the harassment investigation, of course) that there shall be no retaliation and that if any retaliation occurs then appropriate action will be taken. If there is retaliation, you may find yourself conducting another investigation or expanding your original investigation.

Get Buy-in from the Complainant

This has nothing to do with bribes.

What I’m talking about is winning the genuine trust of everyone involved, but particularly the person who made the complaint or suffered the alleged harassment.

The person who filed the complaint isn’t always going to be happy about the course of the harassment investigation, or the conclusions that the company reaches, or the outcome of the action that is or isn’t taken at the end. But, in most cases, they did at least have enough faith to come forward. As the investigator, you want to reward that and build on it.

They might not want to help.

Sometimes you will you have one of those victims who really didn’t want the investigation. They said something to a supervisor and even if they said they didn’t want to go further, the supervisor properly recognizes that they couldn’t keep it confidential. You might initially have a harder job in those cases, but you could also probably try to turn that into an advantage. For example, you could say, “See we’re looking out for you. Would you rather work somewhere that ignores what’s going on?”

Discuss this in connection with confidentiality. Remind them that you’ll keep this as confidential as possible. Then be very thorough in your questioning of that person up front, before you speak to anyone else. Ask them if there are other people that they don’t want you to mention something specific to for a particular reason. You still shouldn’t guarantee strict confidentiality or even that you can always honor their wishes. But you will do the best you can while pursuing an appropriate harassment investigation.

You know you need to demonstrate trust and respect in your interactions with everyone throughout the process even if there are some almost humorous allegations. Part of the conundrum of harassment claims can be that not everyone agrees what’s funny and what’s offensive, what’s acceptable and what’s not. But obviously want to try to make everyone, especially the complainant, appropriately comfortable and confident in the process.

Answer their questions!

One of the best ways to do that is to make sure there are no unanswered questions. You will probably hear, “When are you going to speak to me again?” Give them an answer to that as carefully as you can. Again, don’t make unreasonable promises. Really try not to make any promises other than something like, “I will get back to you as soon as possible, but I expect it will be by this date . . . .”

There will be some questions you can’t answer. Let them know you will get back to them if at all possible with an answer to that question. And then actually do it. Even if you have to follow up to confirm that you’re not able to discuss a particular issue with them further.

There are obvious liability reasons why you want to keep these folks happy. But the odds are that they’re just going to contribute more to the process if they feel respected. You will conduct a better harassment investigation and be able to reach better conclusions if you can get along well enough with the people involved. If for some reason there is an obvious conflict, personality-wise or for some other reason between the investigator and the victim of harassment, the complaining employee, or a key witness, then that might require you to rethink your team. So don’t exclude that from the realm of possibility.

Follow their leads.

The important part is to complete an effective investigation as promptly as possible while still being sufficiently thorough. In doing that you need to speak to other witnesses. You want to first get a list of people from the complaining employee that they would like you to talk to. You then want to go further and find out why they want you to talk to those particular people. What do they think these people may know. Generally, you want to leave no stone unturned. Especially if the person who says they were harassed says they want you to talk to this person, then you probably want to check off that you talked to that person. Until you do, you don’t have any way of confirming down the road that they didn’t have something to say that would have been relevant to your investigation.

You want to ask each witness whether there are other people they think you should talk to. You don’t necessarily have to speak to everyone whose name came up by the end of the investigation. But, certainly, at least the ones who the alleged victim points to should receive serious consideration for an interview.

What do they want?

In speaking to the alleged victim, you want to find out what the person would like done. Why did they come forward? Do they just want somebody to know? Did they not really wanted to go this far? Did they just want somebody to say something? Or do they just need a meeting with the person that they think harassed them to just clear the air? Sometimes that’s where these harassment investigations end up. In other more extreme situations, the person says, “well I’m not working with that person, either they leave or I leave.” Usually, the person telling you that wants the other person to be the one that leaves.

In asking these questions, you’re not guaranteeing that any desired outcome is going to be the result of the investigation. But you want to know what they’re looking for. If you don’t ask that question, you may jump to the wrong conclusions, and do something that would actually end up making the problem worse.

What are you going to do?

Finally, and this usually isn’t going to happen in your first meeting with the complainant, but eventually, you should be discussing with them the organization’s proposed outcome. You certainly don’t want to just wrap up the harassment investigation and never say anything back to the person who filed the complaint, so they had no clue whether you actually followed through with the investigation. But usually, it’s going to be better not to just go to them and say, “alright I investigated everything and here’s what we’re doing…”

You want to get their buy-in again. You explain what you’re proposing and then you get their feedback. They might not like it. You have to address that and then you may or may not change your suggested outcome as a result. But at least giving them the opportunity to have feedback in the late stages gives them more of a role in the process. Empower them and then prevent them from hopefully escalating beyond the internal harassment investigation.

Put It in Writing

We don’t know exactly how this is all going to play out. When you start a harassment investigation, you have to assume that it won’t resolve everything. Sometimes that will lead to the investigation itself being challenged. There could be a complaint filed with an administrative agency. There might be a lawsuit. Or you might have arbitration, especially in the union context. It could come from either side: It could be the person who claims they were harassed, or it could be the person who got disciplined because of the harassment complaint. So, at the end of the day, you’re going to have to have an investigation record that can be used as evidence in some way, shape, or form.

Anticipate challenges.

Whether it’s in a meeting with the affected parties, or whether it’s in state or federal court, you’re going to have to have something in writing that can be reviewed later to see what you did and whether you reached reasonable conclusions and took appropriate action. Fortunately, I think there are no absolute rules on how you must investigate a harassment complaint. These are just tips, not mandates or absolutes. So, you have some discretion in how you do this.

But what I do suggest at the very least is when you’re speaking with witnesses and getting their version of whatever incidents occurred or comments they heard or heard about, their impressions, or feelings they have about something, when you’re getting what you want, to put it in writing. Whether you are typing it or handwriting it, or if you have them do it in a written statement, that can work as well. But you want to get it written. And, especially if you’re the one taking the notes yourself, you want to share it with the witness and have them confirm that this is in fact what they relayed to you.

Ideally, you should conclude with a question at the end that documented that you asked them whether there anything else that they think would be relevant: “Do you have anything to add about this?” Then have them sign off and date.

Note the details.

Make sure you have the date that you took the notes and identify yourself and anyone who typed up any handwritten notes. It doesn’t all have to be done contemporaneously if that’s too much of a logistical hassle. Doing it close in time after the interview is probably better. But once you have that person actually sign off, that can avoid a lot of problems later when someone otherwise would come back and say, “Well, I don’t know where they came up with that! I never said that!” or even “I also said this . . . , but they didn’t write it down.”

So, that suggests you should put something in writing making it this is complete and accurate copy our account of what was said during this investigatory interview. Then as a general matter, you must keep your notes straight and in certain ways, you should keep your notes separate in case anyone ever does get to review your notes you know, such as in discovery in court, for example. We need to draw some lines. You’ll want to be able to separately identify what objectively occurred and what you subjectively perceived. Here, I’m talking about with respect to your investigation, not the incident itself.

Just the facts . . .

In one hand you need to have a record of the facts of the investigation. What the witnesses said, any drawings or descriptions made of work areas or equipment that might somehow be involved, or what happened. Photographs or other pictures, copies of physical evidence, which again could be emails whether you print them out or store them electronically.

. . . Plus your impressions.

Then separate from those items, you have your impressions as the investigator: your characterizations of the witnesses, your credibility evaluations, and any thoughts about the physical evidence that you reviewed. That’s not to say you can’t write these on a copy of a photograph or copy of an email in the margin. But you should keep a separate set. You wouldn’t believe how many times I’ve seen cases where I got a handwritten statement from an employee witness and before they made a copy of it they started writing their own notes in the margins. Well, there might not be much I can do after the fact to then delete that from the document before I turn it over in discovery.

So, keep a clean set of the facts and a clean set of your impressions in case there are reasons why the two should be separated. And if nothing else, so that you know the difference. You’re not looking back at a summary of a witness interview down the road and you can’t tell well did that person said that, or you wrote it down because that’s what you were thinking that maybe happened based on what they were otherwise saying. This is a very important component of a good harassment investigation, so give it some more thought the next time you’re in this situation.

Involve Your Attorney

Does this seem self-serving? It’s really not.

First of all, I don’t represent most of your organizations, so there’s that. But, in any event, if I was really trying to help my profession, I should probably tell you not to involve your attorney in workplace investigations. That would increase the chances that you’ll need us later, and then you’d probably incur significantly higher legal fees when you get into litigation.

Nonetheless, I do think it’s almost always or at least in many cases a good idea to involve your attorney. An experienced employment lawyer should be able to advise you regarding the specifics of your situation and the investigation. They can help review the results and what they might mean legally for the business. But attorney involvement might also be able to introduce some protections in the form of attorney-client privilege that you just really can’t buy elsewhere.

Let us be the bad guy.

There can be some thorny balancing acts in dealing with harassment claims. On one hand, you have to get to the bottom of it. On the other hand, the organization doesn’t want to get sued. That’s one of the reasons why you don’t write in your investigation summary: “Supervisor X violated Title VII, so we have to fire him.” Instead, you write something like: “Mr. X’s actions on this date violated company policy. Based on all the information I have gathered and reviewed including his personnel file, I suggest that Mr. X’s employment be terminated.”

That way if the CEO is furious because Mr. X is his bridge partner, then let the lawyer explain to him in a privileged memo that if they continue to employ his obnoxious friend, it may put the company at substantial risk of liability. Or better yet, we should probably do that verbally. Maybe over the phone.

When the investigator is a lawyer.

I’m not going to say you always have to talk to a lawyer before investigating a harassment complaint. If you have a lot of investigatory experience, it might not always be necessary.

Some of you are lawyers yourselves. That raises a good question: What hat are you wearing?

A lawyer who personally conducts an investigation probably can’t expect their legal impressions or the advice they give about the matter to be privileged at the end of the day. You typically need to involve another attorney to wear the lawyer hat in that situation. That’s not to say every company always needs privileged legal advice during an investigation. But that’s not always a conclusion that you’re ready to make at the beginning. So give serious thought to the prospect. This is easier for those who already have an attorney in-house or on retainer. For many though, that might not be the case.

In any event, if you are giving or receiving legal advice related to a harassment complaint that’s under investigation, by all means, keep the legal advice physically separate from the facts. Yes, there will be some facts mentioned in the legal advice. But you want to keep your factual record of the investigation clean and separate in case an outside party ever gets to look at it. The investigator him or herself will have to make some conclusions (keep reading) but those usually won’t be legal conclusions. You can definitely have evidentiary and substantive problems down the road if you mix the two.

Reach Conclusions, but Not Too Early

The investigator doesn’t just gather the facts. They must also make conclusions based on their investigation. Does the complaint have merit or not? What happened? Who, if anyone is to blame? And other things like that. But, it’s important not to jump to those conclusions.

Hurry up!

Remember we talked about being prompt and thorough. The prompt part is very important. EEOC guidance, for example, says that you should investigate immediately. But you’re investigating because someone took a leap of faith to bring a concern to light. So, even if you’ll eventually conclude the complaint was just full of it, you need to have all your “t”‘s crossed and “i”‘s dotted to support your findings.

And take your time!

After you have amassed this huge volume of paper (or electronic storage space)—all your investigation notes and perhaps the years’ worth of emails that have been exchanged related to the allegations—you want to check and make sure you’ve exhausted all relevant leads. Go back over all the names the complainant brought up. If you’ve spoken to them, review what other names came up through other witnesses. Have you either spoken to them or indicated in your note why you cannot speak to them, or why you chose not to speak to them: “Based on the 8 people I spoke to that were present, I didn’t feel that I needed to speak to the other 4 because there’s no reasonable chance that they were going to tell me something different than what everyone else had already confirmed.”

Who’s telling the truth?

Then once you made contact with all the witnesses you decided to (and even as you’re doing so), make and record credibility determinations: “Yes, I believe this witness.” If everyone says the same thing, you don’t necessarily have to make a separate entry for each witness indicating that you believe them because 37 people told you the same thing. But if you have 3 witnesses that say one thing and 2 witnesses that describe it in the opposite manner, you should address the credibility of the respective witnesses. That’s not always easy. You’re almost certainly not going to be giving them a lie detector test. But you have to either say “I believe this version over this version and here’s why . . . .”, or “There’s just simply no way I can reach a conclusion as to who was telling the truth.”

The conclusion that you can’t tell who’s credible and who is not is still a conclusion. But you do have to try to make some determination regarding credibility on material aspects of the allegations under investigation.

Finalizing Your Investigatory Report

You should state the factual conclusions in your written report. You should recommend an outcome. It’s usually not a good idea for the investigator who spent all this time chasing down all these leads to then simply say to someone else, “Okay. Here’s everything. Now you decide what to do.”

Yes, someone else may be the one who ultimately decides what’s going to happen. But you as the investigator and the person who actually went through the whole course of evaluating witnesses and speaking to them need to recommend an outcome. Someone else can evaluate and make a final decision about the situation. That might be after they come back and talk to you about some of your findings.

As I mentioned before, keep legal conclusions separate. Don’t conclude your report with: “The company has violated the law because we’ve been allowing this person to commit sexual harassment for 10 years even though I kept telling him not to do it.” Speak to your attorneys. If it’s bad, you’re not going to be able to hide what happened. But there are ways that you can acknowledge that inappropriate conduct occurred without completely admitting to violating state or federal laws. In fact, just because something bad did happen, it doesn’t necessarily mean the company did anything unlawful.

Avoid Retaliation

You just simply can’t have it.

Retaliation is one of the most common bases for discrimination or harassment complaints under the various employment discrimination laws. They all prohibit retaliation, and you must as well. Otherwise, your meticulous investigation is basically for nothing, and you’ll just have a new investigation to conduct into the retaliation. Your initial harassment investigation would be flawed almost de facto if retaliation has been allowed to occur.

Whatever you and the company conclude, the outcome has to be that everyone in the organization can move forward. People must put their gripes and differences behind them or else they have to move on anyway. The investigation isn’t the end.

Remind everyone!

Throughout the investigation remind everyone that retaliation is unacceptable and won’t be tolerated just like the underlying incidents of harassment. Managers must watch out for and report any form of retaliation as well.

When the organization takes action based on the investigation, it must do enough to reasonably prevent future harassment, even if the original complaint was unfounded. Think about how this harassment investigation went and whether existing procedures are appropriate, should they be revised, did something come up that no one thought out before but could happen again? Address these concerns now.

If nothing else, anti-harassment training is never a bad idea. You might want to be strategic about it. Sometimes it’s prudent to let a little time elapse between the conclusion of your investigation and a companywide training session, but other times you really can’t afford to delay.

Click here for a quick reference guide on Conducting Workplace Harassment Investigations.