Finding the Facts - Disciplinary and Harassment Investigation

 The individual receiving the complaint will usually have to consult with someone else at the company about what steps to take and to collect information about whether there have been past complaints involving the same employee, etc. That means the complaint will be discussed with others within the organization.  The district may need to take disciplinary action. Again, while the identity of the person who brought the complaint may in some cases be kept confidential, the complaint itself cannot be. (See Appendix http://bit.ly/2MXWIeB , p. 3)

The investigator must always bear in mind that anything he/she says to witnesses, writes in a report, or even in personal notes, could become the subject of litigation or be disclosed as part of litigation. This emphasizes the need for a methodical approach, affording fairness to all witnesses in the process, and ensuring that confidentiality has been maintained, to the extent possible.

LCW Practice Advisor

viii. Special Consideration When Interviewing Students Where students are witnesses to (or victims of) an employee’s harassment or other misconduct, they should be included within the scope of the investigation. Documenting that students have witnessed and/or been subject to an employee’s misconduct is essential because the impact of employee misconduct on the educational environment is directly relevant both to a district’s potential liability, and the appropriate level of discipline. However, investigators in the school setting face unique challenges when called upon to interview students. First, given the power relations involved, students are often fearful to speak out regarding employee misconduct. This is true in both the K-12 and community college setting. Second, with young witnesses, investigators must be particularly careful not to lead the witness, because young witnesses will tend to be more impressionable and eager to tell the investigator what the witness believes the investigator wants to hear. Thus, in addition to the strategies and protocols discussed above, investigators should utilize the following steps when interviewing students:  Remember that the district may utilize a non-disciplinary, paid administrative leave of the accused employee to create a less threatening environment within which to conduct the investigation. (However, also check the applicable CBAs to ensure compliance with any contractual obligations.)  Where it will not affect the integrity or required timelines of the investigation, consider delaying student interviews until the student is no longer subject to the authority/grading of the teacher. For example, if it is only a week until the end of the semester, the investigator might consider ordering the interviews such that the student is interviewed after the semester end and grades are submitted. (This assumes the investigation involves the teacher of the student/witness.)

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 52