Finding the Facts - Disciplinary and Harassment Investigation

We generally recommend checking back in with a complainant after an investigation is completed to ensure the employee is not experiencing retaliation. This should be done no matter whether the allegations were sustained or not. (See http://bit.ly/2MXWIeB , p. 8) vii. Ensure Confidentiality, to the Extent Possible Complaints must be processed as confidentially as possible. Identities should not be disclosed, except to the extent necessary to continue the investigation. Statements made by employees should not be disclosed to other employees, unless it is necessary to elicit specific, relevant, and necessary information from the employee. Occasionally, complaining parties and/or witnesses ask for an assurance of confidentiality before providing information. The DFEH’s Workplace Harassment Guide caution that can only promise limited confidentiality that the information will be limited to those who “need to know” but cannot promise complete confidentiality. The reasons for this instruction, according to the DFEH’s Workplace Harassment Guide, are:  If the complaint is of a potential violation of law or policy, the employer will need to investigate, and in the process of investigating it is likely people will know or assume details about the allegations, including the identity of the person who complained. This is true even when the name of the complainant is kept confidential since allegations are often clear enough for people to figure out who complained about what.  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.

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

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