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HR Handled Right

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Interviewing an employee who has been accused of sexual harassment is not for the faint of heart. As we saw in Part 1, it is natural for the accused to feel defensive, angry and victimized – whether or not s/he is innocent or guilty. However, there are some specific strategies you can use that will help you get at the truth without antagonizing the accused.

Hyper Smash

The Beginning of the Interview

As an outside investigator, I’ve yet to interview an accused employee who doesn’t already have some clue of the allegations against him /her. This is because HR has often interviewed the employee already either 1) as part of the initial investigation and before the decision was made to outsource it; or 2) to let the accused know about the investigation and that I will be contacting him/her.

If you’re an internal investigator, though, you will be tasked with letting the person know about the complaint. At the outset of the interview, explain the company’s policy against sexual harassment and give the accused a general overview of the issue that needs to be investigated.

I’m often asked what to do if the accused refuses to cooperate. The first step is to try to get the accused to talk about why s/he is reluctant to participate in the process and try to alleviate these fears/concerns. (If one of the fears is that HR can’t be neutral, consider hiring an outside investigator). If the employee still refuses to cooperate, explain that you still have an obligation to investigate the issue and if he/she does not provide you with relevant information, you will have to rely on other information — from others interviewed — and that the employee’s willingness to cooperate will be noted as a factor in the investigation.

The Meat of the Interview

Effective questioning starts before the interview begins. You should have already interviewed the complainant; before you meet with the accused, ask yourself what you need to know from this employee, how to present the question so as to gain accurate information, and develop a possible list of questions to use if the interview bogs down. In addition:

  • Start the investigation with broad questions and proceed to more narrow questioning as the interview moves forward.
  • Don’t begin with hostile or tough questions; they can cause the person to become defensive.
  • Save unfriendly or embarrassing questions (such as specific allegations of sometimes obscene behavior) until towards end of the interview.
  • Ask questions that elicit relevant information and the relating of events chronologically. You may even suggest that the employee present his/her reactions chronologically if that approach is helpful to them.
  • Do not put words into the employees mouth by asking questions in such a way that they suggest answers.
  • Review your understanding of the information you are being told.
  • After obtaining as much information as possible, review your notes regarding the specific allegation and ask about each of those not previously addressed by the employee.
  • If the accused denies the allegations or claims that some or all of the accused’s behavior was mutual or otherwise welcomed by the complainant, ask for any supporting evidence or witnesses that the accused can identify. If the complaint is denied, explore with the accused whether the complainant would have any motive to fabricate a complaint.

Ending the Interview

In a sexual harassment investigation, confidentiality is a concern for everyone. At the close of each interview, remind the accused that s/he must not discuss the complaint with anyone s/he works with. Tell him or her to come to you with any additional questions, concerns, or additional information.

Try to create a sense of predictability as much as possible. For example, outline when you anticipate completing the investigation, what will happen when it’s over (for example, that a report will be submitted to_____, that they will be allowed to read and respond to that report, etc.) Lastly, remind the accused that, in this sensitive situation, even the most innocuous comment can be misconstrued so it is crucial that the alleged harasser not retaliate or treat the complaining employee in any negative way.

The Bottom Line

Sexual harassment investigations are pleasant for no one, but – done right – they can lead to a successful resolution and better work environment.