Selecting an Investigator for Sexual Harassment Complaints

Employers must be careful in selecting an appropriate investigator in cases where an employee has filed a sexual harassment complaint. Often times, the decision regarding who conducts the investigation can determine the course of investigation, remedial action available, as well as potential liability for the employer. In many cases, an employer's defense to a sexual harassment lawsuit hinges on the conduct of its employee complaint investigator.

When selecting the individual responsible for conducting an investigation, an employer should carefully evaluate various issues that may affect that individual's objectivity with respect to the complaining employee's reports. Office politics, unclean hands of an investigator such as involvement in the events which gave rise to the complaint, personal relationships or friendships with an alleged harasser or their supervisors, and interdepartmental frictions are factors which may affect the objectivity of an in-house investigator or HR personnel.

Some employers incur liability, not necessarily due to the sexual harassment itself, but from an improperly conducted investigation. In many instances, an investigator who has a close relationship with the alleged harasser may use their power as an investigator to retaliate against the complaining employee and their witnesses. Frequently, upper-level management within an employer is unaware of such personal relationships (often outside of work), until it is too late and they are revealed during the course of an investigation or worse, litigation. When personal relationships or office politics are involved, investigations manifest as slanted in favor of the harasser and against the complaining employee and their witnesses. An investigator must be neutral to avoid bias.

In some instances, the victim of sexual harassment and their witnesses are disciplined by the biased in-house investigator or HR personnel and no remedial action or discipline is issued against the alleged harasser. Additionally, the harasser may even be permitted to interfere with the investigation by intimidating witnesses or rounding up supporters in favor of their cause. Biased, mishandled investigations of this sort create extreme difficulty for employers during litigation and could lead to an unfavorable verdict against the employer or punitive damages. As such, an employer should evaluate whether it is more appropriate to consult an external investigator or law firm to handle investigations into complaints of sexual harassment.