How to Investigate a Sexual Harassment Complaint

Receiving a sexual harassment complaint creates an immediate obligation to investigate. Under Title VII and the framework established by the Supreme Court, an employer's prompt and thorough response to harassment complaints is critical to both stopping the behavior and establishing a legal defense. A botched investigation can be more damaging than the underlying conduct.

Immediate Steps Upon Receiving a Complaint

Act quickly when a harassment complaint comes in:

• Take every complaint seriously regardless of who is involved
• Document the initial report in detail, including the date, the identity of the complainant, and the nature of the allegations
• Determine whether interim measures are needed to protect the complainant during the investigation, such as temporary reassignment, schedule changes, or placing the accused on administrative leave
• Explain the process to the complainant and assure them that retaliation will not be tolerated
• Do not promise confidentiality, but commit to limiting disclosure to those with a need to know

Selecting the Investigator

Choose an investigator who is impartial and appropriately trained:

• The investigator should not be a friend, relative, or direct report of either party
• HR professionals, employment attorneys, or trained external investigators are common choices
• For serious allegations, especially those involving senior leaders, consider an external investigator
• The investigator should be trained in interview techniques, evidence evaluation, and relevant employment law

Conducting Interviews

Thorough, well-documented interviews are the backbone of the investigation:

Complainant interview:

• Get a detailed account of each incident including dates, times, locations, and witnesses
• Ask about the impact on the complainant's work and well-being
• Ask whether the complainant reported the behavior previously
• Ask what outcome the complainant is seeking

Accused interview:

• Present the allegations in enough detail for the accused to respond meaningfully
• Ask for their version of events, including any witnesses or evidence
• Do not reveal the complainant's identity if it is not already known, though in many cases it will be apparent
• Remind the accused that retaliation is prohibited

Witness interviews:

• Interview each witness individually and privately
• Ask open-ended questions about what they observed
• Do not share details from other interviews
• Instruct witnesses to keep the investigation confidential

Evaluating the Evidence

After completing interviews and reviewing documentary evidence:

• Assess credibility based on consistency, corroboration, demeanor, motive, and plausibility
• Determine whether the alleged conduct occurred based on a preponderance of the evidence
• If the conduct occurred, determine whether it constitutes harassment under your policy and applicable law
• Consider the totality of circumstances including severity, frequency, and whether the conduct was physical or verbal

Taking Corrective Action

If the investigation substantiates the complaint, corrective action should be:

• Proportional to the severity of the conduct
• Designed to stop the harassment and prevent recurrence
• Documented thoroughly
• Communicated to the complainant in general terms (you are not required to share specific disciplinary details)

Actions may range from counseling and training for less severe conduct to termination for serious violations. Follow up with the complainant to confirm that the behavior has stopped and no retaliation has occurred.