Finding the Facts - Disciplinary and Harassment Investigation

against the alleged harasser, or of prior discipline against the alleged harasser, it may affect his/her ability to remain impartial. Therefore, the investigator should only review personnel files if and when it becomes necessary, such as in making credibility determinations or, in the event he/she is called upon to do so, recommending the level of disciplinary action, if any, to impose. Do not forget, however, the employees' right to privacy! Investigators should not be allowed to peruse employees’ entire personnel files at will. Unless the investigator is the custodian of the personnel files, the investigator should only have access to relevant information in employees’ personnel files on a need-to-know basis. Also, there are special requirements for accessing police personnel files. 2. P RIOR C OMPLAINTS The investigator should also review records of any relevant prior complaints against the alleged perpetrator, and records of prior complaints by the complainant. Other meritorious complaints against the alleged perpetrator could be used to establish a pattern of harassment, whereas, unfounded complaints by the complainant may be indicative of his/her credibility. Prior unfounded complaints by the complainant may also reflect on the reasonableness of the complainant’s perception of the alleged perpetrator’s conduct. C. D OCUMENTARY AND P HYSICAL E VIDENCE Aside from background documents there may be other documentary evidence, as well as physical evidence that could be “smoking gun” evidence as to whether or not misconduct occurred. Physical evidence could also be the determining factor in making credibility decisions. For example in an harassment investigation, physical evidence include such items as:  “Love letters,” emails, cards sent to the complainant from the alleged harasser;  “Love letters,” emails, cards sent to the alleged harasser from the complainant;  Time cards to prove when the employees were or were not at work;  Other notes, cards or gifts;  Computer print-outs of pornographic materials;  Hotel receipts signed by the alleged harasser (after he has denied staying at the hotel);  Off-color, sexist cartoons (photocopies and faxes).

Originals and/or copies of all relevant physical evidence should be kept in the binder!

LCW Practice Advisor

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 33