Why and how to cooperate with a sexual harassment investigation
Reporting that the boss groped you under the table at that last company meeting was challenging enough, but now the company lawyers are asking you to give them a statement. What do you do? – Assuming you have already reported the incident(s) to HR, the next step for you is to cooperate with their investigation. As we wrote in our recent blog on documenting sex harassment, victims of harassment should continue their documenting throughout the investigation process.
Under California law, an employer must take all reasonable precautions to prevent sexual harassment from happening in the workplace. Your employer is also responsible for promptly taking action to correct sexually harassing behavior as soon as they have been given notice it has occurred. Once they have information that sexual harassment has transpired, they must also initiate an investigation. The employer’s goal is to prevent any instances of sexual harassment going forward, and to take remedial steps to see that a victim suffers no further harassment on the job.
If your employer does not take steps to minimize injury for victims of sex harassment in its employ, they risk sending a clear message that harassment will be tolerated. On the other hand, the employer also has a duty to the accused harasser to determine whether the accusations are true before taking any action against him or her. Here are things to look for as the investigation proceeds. NOTE: If, at any point, it appears that the process has broken down, you should contact an employment attorney.
1. The Investigation Should Begin Promptly
Once you have reported a complaint of sexual harassment, it is your employer’s duty to act on your complaint right away. Delays in dealing with sexual harassment should not be tolerated by any employee.
2. Keep Up Your Documentation
The investigation will involve your employer speaking with you, your harasser, and any witnesses you may have to the unwanted advances. The employer may have the interviews conducted by a supervisor or HR representative, or it may choose to retain an outside investigator or attorney to conduct the interviews. If you have documented proof, e.g., offensive text messages or pornographic emails, provide those to your employer. When doing so, remember to retain copies for yourself. If you have not already done so, request a complete copy of your personnel file. Should the investigation not produce a satisfactory result you can then bring your collected evidence, along with your personnel file, to your first meeting with an attorney.
3. Make Your Own Record
After any face-to-face meeting, update your own records. Ask for copies of any documentation they may present to you for your own records. If you are provided with new evidence that supports your claims, request that copies be placed in your personnel file. Document any agreements reached in that meeting via e-mail to your employer and/or its representatives, as documents can be lost, stolen, or destroyed, but e-mails can almost always be recovered, even if deleted.
4. The Interviews
Recounting your story to a potentially hostile representative of your employer can be intimidating. Our callers often relate tales of freezing up or refusing to go forward when they are confronted with the potential of having to relay their humiliation to company representatives. Prepare for your interview. Have dates, witnesses and documents that can support your story ready to go. Repeat your story without embellishments, as simple, truthful statements are much easier to recount multiple times. If you add flourishes, you may not remember those additions the next time you are asked to tell the story. Keep it simple and truthful. Stay strong, and do not back down.
5. Things to Remember
It is always good to remind the employer from time to time that the behavior was unwelcome. They may be looking to write off your harassment to harmless flirtation or other mutually consensual behaviors that do not rise to the level of harassment.
Be clear that you did nothing to encourage the behavior.
6. Things you should not avoid
Do not try to minimize the incident or take any blame for it, in an attempt to seem humble or agreeable.
Give the employer clear evidence of any unwelcome sexual advance. This will provide a basis for taking corrective action.
7. What will they do to fix the situation?
Let your employer know what you would like done about the harassment. Have a reasonable plan in mind before you go in. Reasonable remedies may include separating an employee from her harasser, transferring the offending party to a different department, or in the case of a severe or repeat offender, terminating the offending party.
8. Retaliation Protection
If you fear retaliation, or are already being retaliated against, for complaining of sexual harassment, speak up. Tell your employer. Ask to see the company policy prohibiting retaliation and inquire if they have spoken to the offending parties. If they have not, ask when they will do so.
9. Appearance of Cooperation
It is critical that you seem cooperative throughout this process. Until they conclude the investigation, you have no reason to believe your employer will fall short of the law and fail to protect your rights. Should your employer begin to seem hostile, continue to cooperate, carefully, and contact an employment attorney immediately. However, if it gets worse, ask that an attorney be allowed to accompany you to any further meetings concerning the investigation.
10. Be consistent
Before you even report the incident, you may want to write down your story and create your timeline. Paperwork can feel like additional victimization, but you will be glad you made a clear record in the long run. As you do so, stick to the facts. It is a bad idea to get in the habit of elaborating. Try not to become too emotional. Should you need to retell the tale 1000 times, it should stay exactly the same each time.
An employment attorney will always tell you it is in your best interest to cooperate with the employer’s investigation. The investigation itself is required by law, and you will be on firmer ground when it is completed if you cooperate with company representatives as they try to uncover the truth. If at any point they begin to attempt to minimize or “play down” what happened, you want to be on record as respectfully disputing that viewpoint. For your part, try to take the higher ground, particularly when you believe the company’s investigation may be biased. Stick to your story and do not let them coerce you into backing down. Remember to request a copy of whatever written conclusion is generated for your records. They may refuse, but if you ask, they will know you are paying attention.
Once you have followed all the previous steps, you will have fulfilled your obligation to report the harassment to your employer. As a result, going forward your employer is prohibited from retaliating against you for reporting sexual harassment internally pursuant to company policy. In addition, the company now has an obligation to remedy the harassment within the workplace.
Here is a simple checklist:
- Document as you go
- Request your personnel file (the law requires your employer to provide it)
- Cooperate with the investigation
- Prepare for, and attend the interview
- Keep your story simple & truthful
- Don’t be intimidated
- Have a remediation plan
- Report retaliation if it also occurs
- If the resolution is unfavorable, call an attorney
Once the investigation is concluded, and you have been presented with your employer’s findings, contact an employment attorney. He or she can then help you decide where to go from there. If you decide you want to take it further, Lazear Mack can be reached at 510-735-6316 or you can fill out an intake on the web
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117