Finding the Facts - Disciplinary and Harassment Investigation

While the law is not clear on whether consent is required, notice that the interview is being tape recorded must be given to the person being interviewed! Such notice should be recorded either on the tape or in writing.

LCW Practice Advisor

If the investigator decides not to tape record and to only take notes, he/she must keep in mind that careful notes taken at the beginning of an investigation and putting as much in quotation marks from the mouth of the speaker as possible will be essential in supporting the investigator’s conclusions, if challenged by the complainant or accused.

4. I NTERVIEW S TRATEGIES

a. Establish an Appropriate Interview Tone In all interviews, the investigator must convey the seriousness which all complaints deserve. The investigator must also inform witnesses that the investigation has not been completed and that a decision regarding the complaint will only be made after the investigation is complete. Particularly in interviewing, and in all dealings with the complainant, it is important to create an atmosphere that is supportive and conducive to the full development of information. The majority of complainants believe that by coming forward with their complaint, they are taking substantial risks. These risks include possible retaliation by the perpetrator, the prospect that they will not be believed, and possible adverse impact on their present job and future promotional opportunities. Given these perceptions, always use a tone of non-condescending sensitivity. This is not to suggest that the investigator should or may prejudge the case. The complaint is the triggering device for an investigation; there is no basis for deciding whether harassment occurred or who is “telling the truth” until a full and fair investigation is complete. Basic fairness requires that the positions of both the complainant and alleged harasser be received with openness, and that the investigator refrain from pre-judging what happened or who is telling the truth until all of the relevant facts have been obtained.

b. Forms of Questioning: Do’s and Don’ts

i. Ask Open-Ended Questions (i.e., “What did he do next? What was your response?”) The investigator should avoid leading questions (e.g., “Isn’t it true that you forced her into the room?”). Leading questions point to an answer, may suggest that the investigator has prejudged the issue, and may make witnesses feel defensive and less willing to provide information.

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 54