Categories: Webinars, Employment, Human Resources, Resources for Attorneys, Resources for Experts, Working With Experts

How to Conduct Harassment and Bullying Investigations

Program Description:

On February 7, 2019, from 2:00 pm - 4:00 pm (ET), The TASA Group, in conjunction with education and workplace harassment expert Dr. Susan Strauss, presented a free, two-hour interactive webinar presentation, How to Conduct Harassment and Bullying Investigations, for all legal professionals. During this presentation, Susan discussed:

If investigation is necessary
Components of investigation
Steps of investigation
Interviewing the accuser, accused & witness
Formal and informal investigative procedure
Conclusions following investigation
Writing a formal report

About the Expert:

Susan Strauss RN Ed.D. is a national and international speaker, trainer and consultant. Her specialty areas include education and workplace harassment, discrimination and bullying; organization development, and management/leadership development. Susan conducts bullying and harassment investigations, works as an expert witness for education and workplace harassment and bullying lawsuits, and coaches those managers and employees that need assistance in stopping their harassing or bullying behavior.

Transcription:

Rochelle: Good afternoon and welcome to today's presentation, "How to Conduct Harassment and Bullying Investigations." The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All material pertaining to this presentation are merely for educational purposes and should not be used in a court of law [inaudible 00:00:22] i.e. a business relationship where she or he is hired for your particular case. In today's webinar, Susan will discuss determine if an investigation is necessary, identify components of investigation, conduct steps of investigation, interview accuser, accused, and witness, differentiate between formal and informal investigative procedure, reach conclusion following investigation, and write formal report.

To give you a little background about our presenter, Susan Strauss [SP] is a national and international speaker, trainer, and consultant. Her specialty areas include education and workplace harassment, discrimination, and bullying, organization development and management leadership development. Susan conducts bullying and harassment investigations, works as an expert witness for education or workplace harassment and bullying lawsuits, and coaches those managers and employees that need assistance in stopping their harassing or bullying behavior. Attendees, the required passcode, the word for today is "bullying." During the Q&A session we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the left of your screen. Please remember that if you are applying for CLE credit, you must all go through your computer as yourself in the space of a full 120 minutes. You're also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer.

Tomorrow morning we will send out an email with a link to the archived recording of the webinar. The slides can be downloaded from the resource list at the widget at the bottom of your screen. Thank you all for attending today. And Susan, the presentation is now turned over to you.

Susan: Well, thank you very much, Rochelle, and greetings, everybody, from Minnesota where we are having a snowstorm. Oh great, polar vortex and now more snow, and we've all got cabin fever. Well, with that, we are going to be talking about an element that is unfortunately, sadly lacking in harassment lawsuits, and I'm going to be talking more about harassment today, although I will be mentioning bullying. Everything that I talk about today regarding harassment and conducting investigations for the most part will apply to bullying. We don't have the same laws, as you probably all well know, regarding bullying, so that will make a difference. With that, let's get started. There's just a little bit of my bio. Let's look at the objectives for today.

Number one, we will be examining whether, when a complaint comes in, is an investigation actually even necessary? We will identify the components of an investigation as well as the steps in the investigative process. Also, how do you interview the accuser, the accused, and the witnesses? Now, you might hear me use various terms for the accuser. I might use the word "complainant," I might use the word "victim," I might use the word "target," and for the accused I may use the word "perpetrator" or "harasser" or "bully." And witnesses, well, they're just good old witnesses. We'll also differentiate between a formal and an informal investigative procedure, and then this is a huge area that's missing when people conduct investigations. It's how do you reach a conclusion? And part of that is how do you determine credibility? And when there is an expert report from the investigator, usually I don't find one in my work as an expert witness. They don't determine whether or not somebody's credible or how they're credible, and there's no documentation as to how conclusions are reached. That's big.

And then finally, we will talk a little bit about how to write the formal report. Now, I do as well a one-hour webinar just on writing the formal report. I will try to incorporate as much of that today as I can. Just a heads up, I am a little bit scratchy in the throat. So I will be pausing to take drinks of water. I just don't want you to think we've been disconnected when that happens, and I'm going to so right now.

Okay, think about yourself now here. What is a good investigator? Well, they're able to think clearly and analytically, which attorneys, that's usually one of your fortes. You've got to be able to sound authoritative and convincing to a jury, but you know what? So many of these cases do not end up going to a jury trial. They settle out of court. So what I want to encourage you to be able to do is you've got to sound authoritative and convincing to opposing counsel or to the EEOC or to, even if you're doing a Title IX investigation, to OCR, the Office For Civil Rights or to any of your states human rights/civil rights agencies.

Are you unbiased and impartial? Well, you know, we all have our biases and we have unconscious biases, and of course, by the mere term, unconscious means we don't know we have them. So it's best if you can be as tuned into yourself as possible, recognizing that we do have our biases and we should be, of course, as impartial as possible. Are you good with people? I'm making an assumption because you all are attorneys that you are, or you wouldn't be in the profession. And how is your writing? Now, one of the things I've discovered in doing my expert witness work is, my goodness, you lawyers are fantastic writers. But just in case, are you able to write a very thorough, organized, and factual report? And not only that, but how's your punctuation? How is your spelling? Do you know when to begin a new paragraph? You get the idea. I don't think you all need to worry about that too much. How are you in gathering facts and following up on leads? Again, I would guess that would be your forte.

And do you know harassment law? Now, that's the clincher. You know that we've got federal discrimination and harassment, each state has their own discrimination and harassment laws, but so do many cities. So it's going to be important for you to be aware of whatever law it is that the complaint aligns with. So it's hard, I think, to stay current in all of the harassment law. One of the ways that I do that is I am on email blasts from a couple of different employment law firms. So I'm able to stay as current as I can on different laws based on my receiving these emails. So if you don't already receive information to keep you current on what's happening in the courts on the various laws, I encourage you to sign up for some. But if a complaint comes in that you are going to need to investigate, make sure that you are familiar with that familiar law.

All right, what else do you need to be able to do? Ask good probing questions, and this is sometimes not very easy. I have found it particularly difficult when I am investigating sexual harassment or LGBTQ harassment. Those, to me, are the most difficult, and they tend to be more embarrassing to ask. I'll give you an example later. How introspective are you? Do you know your biases? Are you able to read between the lines and see what's not being said while at the same time see the holes in the story? How are you at separating rumor from fact?

Now, let me just say something. What you're going to be learning today is how to conduct a civil investigation, not criminal. You are not in a court of law, you are merely conducting an investigation. It doesn't matter if you hear a rumor. Just make sure you separate it from fact, and actually, I always like hearing rumors because I always ask my interviewee, "Who did you hear this from?" because that provides you with an additional witness or two, and you want that.

How are you at communication? Now, I'm assuming just because of my experience with attorneys that you all are good in your written communication, but how are you in your verbal communication? Again, you're well-educated, I assume that you're fairly good with that, but something to be aware of. And then are you skilled and knowledgeable? Skilled and knowledgeable in harassment law, understanding the nuances of bullying as well, and skilled and knowledgeable in conducting investigations.

Now, this is a handout. I'm not going to go through this now. It's something for you to review post-webinar, but it does give you some additional qualities. If you look at number six, it says, "Just recognizing sexual harassment." I actually should change that so it reads a generic harassment of protected classes. But anyway, this is for you to review after the webinar.

Now, here's a little something I'd like you to take a look at. And this is not a valid and reliable survey, but take a look at it, and I'm going to give you a couple of seconds to quickly peruse what this questionnaire is all about. Go for it. Now, obviously we are going to be biased in favor of ourselves. In fact, the research suggests that we tend to view ourselves more competently than maybe what we are. So one of the things I encourage you to do is grab one of your trusted colleagues, somebody that will be honest with you, and ask them to go through these questions about you and to provide some feedback. And then if you really want to know, give it to one of your best friends. You know, one of the people that you go out and have drinks with Friday night or get together with Saturday. Ask them to respond to these questions about you, and you will glean some additional insight, hopefully, or at least how people perceive you.

So one of the questions that comes up by folks that are conducting investigations is, hey, when should we contact a lawyer? And this again is a handout for you, and it gives you guidelines. Now, you all are lawyers. You may have a little bit more of a perspective here, but what I want you to consider is that very often there are two types of attorneys with organizations. One is their corporate counsel, and the other one is the employment lawyer. Now, my suggestion would be, when you think you've got an issue that is identified on these bullets, I would recommend that you contact your employment lawyer who's probably on contract with you because that's what you're dealing with. Now, maybe your corporate counsel is fully engaged with employment law. I don't know, but something for you to consider is which legal counsel would you want to involve? And my recommendation is employment law. Now, that doesn't mean you might not want to contact your corporate counsel as well. Anyway, this just gives you some guidelines. Again, you can look at this following the webinar.

Now let's look at lawyers as investigators. And this doesn't mean the company lawyer or the employment lawyer. It's talking about any lawyer. So let's look at the plusses. Well, first of all, you all are trained in gathering facts. I don't think it matters what kind of law you practice. Certainly you will have a legal understanding, and you will have a more broad perspective of some of the more subtle nuances that might be associated with discrimination and harassment. You certainly know how it will look in court.

Now let's look at some of the minuses. And with all due respect to you, my audience, generally speaking, lawyers are not particularly trusted or liked. There's research from studies that have been done that demonstrate that. And of course, I know that's not true for any of you that are on today, and my son-in-law is an attorney, and he will say, "Yeah, that's true. I don't even like working with lawyers," and I've heard that from other lawyers.

So think about that, then, when you are doing an investigation, because those people that you are going to be interviewing may be less likely to confide in you because you're an attorney. Jurors, some of the research shows, tend to be more likely to distrust a lawyer who testifies in court. And I think, to me, one of the biggest problems with having an attorney as an investigator is it creates lawsuit kind of thinking. And right now all you're doing, you're a fact finder. It has nothing to do with you being an attorney. It has nothing to do, at least initially, with a lawsuit. And if people are thinking, "Ew, this is going to be a lawsuit," they're going to be much less likely to spill the beans because of fear when they know you are an attorney. So just something for you to think about.

Now, what about using the organization's attorney? And some of you may be the organization's attorney. Well, the perception is that you are in cahoots with management, you're just way too cozy with them. And for the most part, you can't represent the organization in court because of attorney-client privilege, and you might have to reveal confidential conversations. Now, that said, one of the things that I'm seeing more and more is that in my expert witness work, in fact I just got a new case today, and this is what's happened in this case, is that the attorney for this particular organization did conduct the investigation and at least right now, and I haven't gotten through much of the discovery yet, that attorney is claiming that the investigative report is not going to be available because it is protected by attorney-client privilege. So it may depend on what part of the country you're in, what state laws say, what your perspective is, etc., but that has typically been what I have found, is that attorney-client privilege is jeopardized. That may be changing, and something for you to think about.

So let's look at whether you would be the only investigator or if there might be two investigators. So first of all, if you're using only one investigator, certainly it will be cheaper. Now, I don't know if those of you that are on today would all be external investigators or in fact if you are employed by an organization as their attorney, but whether you would be hired or your cost would be absorbed by your salary, it's still cheaper to have one. Yes, you have bias, you're definitely going to have your bias, but it's only one person's bias, and hopefully you're in touch with what that bias is. It definitely would ensure consistency. Now, let's compare that to two investigators. So maybe you decide that you are going to have a colleague conduct the investigation with you.

So let's look at what that's all about. Well, first of all, if you have two investigators, it can be a reality check. You can compare impressions and you can corroborate any kind of evidence, stories, etc. Now, the jury might like it if there are two investigators that have concluded with the same decision. Ideally if you have two, now, I've got male/female for gender parity, but I'm going to expand beyond that. Ideally it would be nice if you have not only male/female, but if you've got different investigators based on race, ethnicity, LGBT, religion, you get the idea. You may want to have two investigators if you think it's going to be a particularly difficult interview.

But let's look at this for a minute. Having two investigators, if you both are in each interview is going to be more intimidating. I mean, let's face it. You're going to have somebody coming in to be interviewed, they're going to be finding out what it's about. They're going to be intimidated anyway, and now if there's two of you in there and if both of you are attorneys, it's going to be more so. That can get them so uptight that they may forget relevant information, etc. And of course, with two, it's going to be more of a time commitment.

Now, there's another thing to consider if there's going to be two of you. What roles and responsibilities will each of you assume? For example, are you going to divide the number of interviewees in half and one of you will take one group and the other will take another group? Or are you both going to be in the room when you interview every person? But even then, if you're both going to be in the room, what role are each of you going to assume? Is just one of you going to ask the questions while the other one writes the answers? Are you going to alternate who asks the questions? Are you both going to write down the answers? Or just one? You get the idea. So if you do use two investigators, you do have some questions to ask yourselves regarding the role and responsibility.

Now, what about using internal and external investigators? Well, if you're internal, certainly it would be less expensive, as I stated before, because your cost would be absorbed by your salary. If you're internal, you understand the climate, the culture, the politics and the players. Now, that could be a plus because you can understand some of these nuances and how things really work. But it could also be a minus because you are part of the culture, the climate, the politics, and the players. If you're internal, it would be quicker. Internal investigators are almost always perceived as being pro-management and therefore biased. When I do face to face training on harassment and bullying, that's something that comes up all the time from employees. Why is it that we have HR, usually, conducting investigations? They know who butters their bread.

Let's look at external investigators. Generally speaking, they have better honed skills, primarily because they do more investigations. They will be neutral and impartial. You definitely would want to use an external investigator if you don't have any HR or anybody who's trained internally to conduct an investigation. You would use an external if there's a complaint against anybody that's in senior management. And here's the thing. For internal, and I should have said this, you don't ever want to investigate somebody that is higher up on the rung of the ladder than you are, because it is going to put you in an unbearable situation.

You would have an external if there are extremely serious charges. Certainly that's going to cost more, and the cost will vary based, I think, on what part of the country you might be in. I've seen some external investigators charge, I think, an exorbitant amount of money to do an investigation. But some recognize as well that this investigation could very well be under a microscope if it goes to court. Now, the external investigator does not know the culture, the climate, the politics, and the players. Usually that's a plus because it minimizes any sense of bias. But the external really need to be well-vetted because they don't have any established credibility. All right?

Why do we investigate in the first place? Well, two big reasons. One, certainly to reduce liability and two, to restore harmony. You want everybody back to work, you want everybody to be doing what they need to be doing and engaged. What are the objectives of the investigation? Well, you have to identify the who, what, where, when, and how. You need to get the names of everybody that's involved. You gather all the information that you can, and this will include policies and procedures and EEOC guidance and other documents, maybe emails, text messages. We'll talk more about that.

You're going to have to determine credibility and draw conclusions. That is tough, because the credibility cannot just be, oh, they had good eye contact. No way. In fact, research suggests that those folks that have good eye contact are those that are the most likely to lie. You will suggest an action, and usually the investigator only suggests the action and determines in conjunction with the managers how you're going to remedy the situation. But you've got to be prepared to suggest the action and to suggest a remedy.

Now, when do you not investigate, at least generally speaking? Well, one, you're not going to if the behavior has stopped and if the harasser or the bully acknowledges his or her behavior. Now, you notice I say generally here. Well, first of all, remember you're doing the investigation to determine the facts, you know, what happened, and of course to restore harmony and to get the harassment to stop. Well, if it's already stopped and the harasser and the bully have acknowledged their behavior, it's like, well, then why investigate?

Well, there might be times when you still need to. If the behavior has been particularly egregious, if the behavior has been particularly pervasive throughout the department or the company, you need to find out exactly who all has been victimized by this perpetrator. Now, I had a friend who was a director of HR, and she ended up investigating every single little complaint that came in to her office, even if somebody had just told a dirty joke.

And what happened is, first of all, people don't want an investigation anyway, and they come forward with something relatively minor and they didn't want an investigation. They just wanted the joke teller to stop. But she would delve into it. And what happened is it worked against her because people quit coming to inform her of even these more minor infractions. Now, that didn't work well for the culture of the organization because these minor infractions then were not being dealt with, and essentially the organization, because they weren't dealing with it, were giving sort of tacit approval. So we'll talk about that, because it gets into whether you conduct an informal resolution or a formal investigation. And today's webinar is all on a formal investigation.

So what is a complaint? Take a look at your slide while I take a drink. All right. Now, this is the challenge as to what is a complaint. I know my HR friends say that they've gotten so they don't even want to go out for drinks on a Friday night after work with people because they know they're going to probably hear some gossip, they might hear an offhanded comment, and it's like, oh no, now I have to do something about this. So those of you that are employed by an organization, yes, gossip or an offhanded comment is a complaint. Any number of you could see, you could observe something that's questionable.

Do you have employee opinion surveys? Now, I would be a little careful with these. If you really want to find out what's going on, then make sure that you've got somebody that creates your survey that doesn't just ask, "Have you ever felt treated differently because of your color or your religion, or have you ever felt as though you've been sexually harassed?" Those are not valid and reliable questions. And if you're going to use an opinion survey, you want to have one that's valid and reliable.

Now the law, both Title VII, which is primarily what we're talking about today, although there's others as well, and the EEOC, Equal Employment Opportunity Commission, and Office for Civil Rights say that you should know if harassment is occurring. Now, you notice I didn't say Title IX. Title IX does not say you should have known. It says you have to have actual knowledge. So I'm not going to be delving into Title IX for a complaint today. But anyway, please be aware that Title VII and the EEOC and the Office for Civil Rights which does reinforce Title IX says you should have known.

And then anonymous. Now, let's look at anonymous for a minute. Let's say that somebody after hours has put a complaint underneath your office door, and you are employed by the organization. So what do you do about that? Well, this is what you need to do. If in fact it deals with a specific department, then you need to call and go visit with that manager, let her or him know that you've received the complaint, show the complaint to the manager, and be sure that you bring a copy of your policy. It might be your code of conduct policy, it might be a harassment policy, but maybe it's a complaint about pornography. Well, then you're going to have to access your social media policy or maybe your IT policy, okay? You get the idea. So you'll bring whatever policies align with the complaint, and you review them with the manager. And you encourage the manager to keep his or her eyes open and monitor the environment.

Then what you do is you have a meeting with all of the managers' direct reports. You have them sign in and you distribute the pertinent policy to each of the direct reports. And you review the policy with the direct reports and let them know what the definition is and examples of harassment and the same if it is bullying. All right? And you make sure that they know that they can go to their manager or any other manager or HR to complain.

Now, once you've done that, you document that you did that, and you take the sign in sheets and you keep all of that as evidence. Now, perhaps your anonymous message comes in a more global sense and you don't know what department that it is occurring in. In this case you will send out an email to all managers in the company, you will let them know that there has been a complaint and what that complaint is, that you do not have the specifics, and then you inform the managers that they are to have a meeting with all of their direct reports, that the direct reports need to sign in, and that that manager reviews whatever policies are pertinent to the complaint, and does a little mini training on what is harassment with examples and what is bullying.

Then each of those managers needs to document that they had that meeting and provide you with the agenda, the sign in sheets, and their documentation for you to be the central repository of that information. Now, for those of you that are not employed by a company and are hoping to do this through your law firm or as an independent attorney, you need to encourage your client that they should be doing the same.

So what about investigations? Well, ideally you want to do it, we're going to start at the top of the screen, within about 24-48 hours. Now, the law and the EEOC do not dictate the amount of time that you need to implement your particular investigation, but they do say that you have to take "prompt action." Well, it's going to be tough to take prompt action if you haven't done a prompt investigation. Now, you want to get going at it as soon as you can to capture everybody's memories. And we know that people's memories are not that red hot anyway. So get in there and interview. And you want to also begin the interview process and complete it as quickly as you can so that interviewees do not have an opportunity to compare notes with each other.

Now, there might be some legitimate delays. I'll give you an example. I got a call from an organization last fall, and they wanted me to come and do an investigation, and they called me late on a Wednesday afternoon. And I said, you know what, the soonest that I could get there is next Tuesday, and I said I'm afraid that would be too long of a time, and I don't recommend you wait that long. Well, it was an attorney that called me to do the investigation, and he said, "Well, based on the facts of the case, it won't matter." So that was considered a legitimate delay. Now, we'll see, because this particular case is ending up in a lawsuit and we'll see what they say about that.

You establish a timeframe and it has to have a little bit of fluidity in it because you don't know what you don't know yet, and you communicate that timeframe to the accused and the accuser. And if in fact the organization has a collective bargaining agreement, make sure you check with that as well because very often those requirements are in their agreement in terms of how soon you begin and how long they should last.

Now, you have to develop a plan. So what do we do there? Well, you're going to determine who do you interview and in what order. And you will want to create as many of the questions ahead of time as you can. Now, sometimes that's easier said than done, and I'll give you a hint on how to do that that will be, I think, easier for you to do. You will gather evidence, and I'll be giving you another slide as to what kind of evidence. You will gather the documents. Now, the documents are all of the policies, as I mentioned before, that align with the complaint, and all the policies should contain procedures. And I will tell you, more often than not people that investigate do not follow their own procedures. That is a must. You must follow the procedures.

Now, determine who needs to know and what they need to know, and whether you need to consult any experts. Now, what do I mean by experts? Well, you might need a handwriting expert, you might need a lip reading expert. Let's say you've got a video surveillance and you can't hear it. So you might need to hire somebody who is a lip reader. You might need an IT consultant. I just did an investigation a couple of months ago, and this one dealt with pornography. And if you can imagine, it was the Vice President, I mean, talk about dumb, sending out pornography to his direct reports and to their clients. Anyway, the IT people within the company were able to get only so deep into their computer system. So we did hire an IT professional to come in.

All right, let's talk about the questions for a minute. This is what I'm going to recommend that you do. I think it's much easier for you. I always use yellow legal paper, and what you do is on one page of yellow legal paper you will write down all of your questions. One, two, three, four, five, etc. All right? But it's on a separate sheet of paper that you will put the answers. So for question number one on your question paper, you'll take question number one from your question paper and you will then on your answer sheet put down the answer to question one. Now, maybe in that answer to question one, you are asking some follow-up question. Put those follow-up questions on the answer sheet under the answer to question number one from your questions sheet. I'll go over that again because I know it can be confusing, but that is what I have found after trying a number of different ways that tends to work the best.

Now, there will be routine statements that you will be saying to every single person that you interview. So let's go through that. Number one, you will talk about confidentiality. You will let everybody that you interview know that you will keep everything as confidential as you possibly can, but you cannot promise total confidentiality. Then the next thing is you've got to communicate to each interviewee what the organization's stance is on confidentiality. Now, it used to be that we would routinely tell every interviewee that they are to keep it confidential. But now the National Labor Review Act has said that you can't just across the board do that. So what I would recommend is that for whatever company you either work with or for, that you check with the employment attorney as to what information they wish for you to give to the interviewee.

So I'm not a lawyer, I won't tell you what to do on that. You all, as lawyers, may even have more of an idea. But it is iffy, and what I have found is some attorneys say, "The heck with the NLRB." Others will say, "Well, all right, we'll kind of abide by that. Don't tell them they have to be confidential." So I have found discrepancies in attorneys' viewpoints as well. You will also inform every individual that they are not to retaliate against anyone involved in the investigation and that they are not to be retaliated against. And if so, that they should inform you. Now, I will be giving you in this webinar handout, you will have examples of what constitutes retaliation. So what you should do is take these examples, type them up on one piece of paper, and give a copy of it to everybody that you interview, because people do not really know what constitutes retaliation.

And let me just throw in something else. We don't have the 2018 statistics yet, but the 2017, for the fifth year in a row, retaliation was the most frequent complaint to the EEOC. In 2018 it comprised almost 50% of all of the complaints to the EEOC. And that was the fifth year that it had increased, and it's been increasing by three to five percentage points. So we'll see what the 2018 statistic says.

You will ask everybody if they are voluntarily participating in this interview. You might be thinking, oh yeah right, don't they really want to do that? And they might say that to you. "Oh yeah right, this is really where I want to be." I've never had anybody, though, refuse. But you will document that you asked and you document their answer. You are going to be documenting because your report begins the minute somebody comes in with a complaint. The minute you put your pen to paper, you are starting to write your report. So you will be documenting that you have said every one of these bullet points, and you will document under each bullet point what it is you said.

Now, for the accuser and the accused, you will provide the policies that align with the complaint. I do not give them to the witnesses. If they ask, I refer them to their company intranet. And you may when you provide the policies show on the policies which aspects of the policy you're investigating. You will let everyone know that you are taking notes and why. So why do you take notes? Well, there are three primary reasons. One, you obviously want to memorialize what each interviewee says. Number two, you will use your notes from the interview to corroborate evidence. And three, you will use these notes to write your final report. You will let them know that there will be some people who will know and what they will know. So that might be, for example, their managers. But even the managers don't need to know the whole kit and caboodle.

All anybody will know is that you are, now this is important, you are investigating a possible violation of a policy. And that's all you tell everybody that you're interviewing. You don't say, "We're investigating whether or not Johnny sexually harassed Susie." No, it's always based on whether or not somebody has violated a policy. Okay? You explain to everyone the process of an investigation and how they fit. So you might say to a witness, "George, your name was given to me as somebody who might have some information about a possible violation of our harassment policy. Pretty easy. Or if it's the accused, you would say, "Johnny, your name was given to me as somebody who may have some information about a violation of our harassment policy." And of course you'll go forward in a different direction with Johnny. You let everyone know that all this is, is a fact finding mission, that there are no conclusions that have been drawn. It's fact-finding only, and you let them all know you may need to talk to them again.

Now, all of this gets documented, all right? And just to save you some room, you will be taking this information by longhand. I strongly recommend you do not type it right off the bat, and I'll get into why in a little bit. And once you do type it up, you can do a copy and paste because essentially this will be the same for every single person that you interview. And these routine statements will be in the very beginning of every interview that you do. So it works out quite handy to just do a copy and paste, and it saves you a little bit of time, because I'll tell you, typing these things, ugh, they take some time.

Okay, now one of the questions that comes up is, "Hmm, should I record this interview?" I recommend that you don't. I have never recorded any interviews, with one exception. And that was because the attorney for the company asked me to do it because there was already a lawsuit. Now, it's up to you, of course, if you want to, but here's the deal. If you decide to record, make sure that you are taking all of your notes at the time of the interview. Otherwise if you think, "Well, I'm just going to go back and listen to this later," it's going to take you twice as long to complete the interview because you're going to have to listen to the recording. And you must, must, must have all of your notes for each individual interview. You need them.

Now, let's look at when you're questioning. You want to start with easy questions. You know, their background, who do they work with, how long have they been with the organization, what's their position, if they're a college grad, where did they go to school, do they like their job, which department are they in. And then you start narrowing it down. Now, I call this the funnel approach. The funnel technique of interviewing. You start broad and you gradually narrow it down. So then I ask them, "What do you think it's like to work here at this ABC company? What's the climate like, do you think? What's it like in your department? Do people typically get along? Do you have a good time together?" You do not ever give them any more information than they need to know, and you differentiate fact from hearsay.

So we're going to use a little case study here during this webinar. It's going to be a simple one, and it's going to be about Johnny and Susie. So Susie has come and informed you, or you have come to be informed that Susie says, "I just want to let you know that today during lunch, Johnny was telling dirty jokes." Okay, so you've interviewed Susie, you've gone through the whole shebang that we just talked about, the routine statements. You've gotten her comments and now you are going to ask to speak to Johnny.

So Johnny comes to meet with you and you start with easy question. "Hey, Johnny. How's it going?" You might even say things like, "Doggone this snow is just the pits. It's going to be hard," and that was pits, by the way, P-I-T-S. "It's going to be hard getting home. Tell me a little bit about your background. And what do you do here at XYZ company anyway? What department do you work in? How long have you been here?" "Oh, I've been here in research and development. You must work with so-and-so and so-and-so." "Do you really like your job? I think it sounds like it'd be interesting to work in that department. What's it like to be in that department? What's the climate like? Do you all get along? Do you go out for drinks after work? Do you have lunch together?" And then Johnny goes, "Yeah, I like my job, we all get along really well, oh yeah, we have lunch together, a lot of us have lunch together almost every day."

You say, "Well, what do you talk about anyway? You've been working together all morning and then you have lunch together. What do you talk about?" "Oh well, you know, I mean George just had his first grandson and Susie, her daughter's getting married this weekend. So we've been hearing all about the wedding, and Mohammed is going to be taking a great big huge trip and going home to the Middle East, so he's pretty excited about that." Well, Johnny, do you ever tell any jokes when you all are eating lunch? "Oh yeah, we tell jokes, you know. We're kind of a fun group." Well, what kind of joke do you tell anyway? "Well, I don't know. You know, we've got some stupid jokes we tell. You know, a bunch of stuff." Do you ever tell any sexual or dirty jokes? "Oh, okay. So somebody came and told you. Yeah, today I told a couple of dirty jokes."

Okay, so we're stopping there and we'll pick that up later. All right? So this is our little case study for today. Okay, now let's look at a couple of other little questioning tips. As much as you can, you use open ended questions, not questions that can be responded to by yes or no. And then you follow up with who, what, where, when, and how. You try to get a chronology, and sometimes I find that that's a bit of a challenge not only for the accuser, but also for the accused because they're uptight, they're nervous and they kind of, especially I think the accuser, they can be all over the board. So you have to keep bringing them back to and asking, "Well, what happened next and what happened next?"

Now, you also need to clarify whether when they say, "I don't recall" versus, "I don't recall," because that can mean two different things. They might say, "I don't remember," but you get the idea. So you're going to have to ask them, "When you say you don't recall, are you saying, 'Oh, no, I don't recall that ever happening'? Or are you saying, 'I don't recall. It could have happened, but I'm just not sure'?" So you want to clarify the distinction between those. Now, here is an initial checklist for the interview of the complainant.

Now, the complainant may end up being a witness or the complainant may end up being the actual target. But this is an initial interview checklist that you can use. I'm not sure, can you all, is this your whole screen? I don't know if you can see it very well or not. It's not the whole screen on my end, so I'm not sure if it is on yours or not, but at any rate, this is a checklist. And of course you're also telling them to be honest, etc. Then what I've given you is sample interview questions. I think these will be very, very helpful for you. Sample interview questions for the target. And now these are generic, but I think you'll see that even though they're generic, they pretty much capture what you need to know. You will be customizing the questions based on whatever incident you in fact are investigating, but you get the idea.

Now, I want to draw your attention to question 49. And it says, "What would you like to see happen as a result of your coming forward?" Now, let's say you've asked Susie this and she says, "Oh, I don't want you to do anything. It's not that big a deal. I just thought somebody should know." Well, your response needs to be, "You know what, Susie? I can understand that you really wouldn't want anybody to get involved, but you know, I have a responsibility. I need to just say something to Johnny." Or Susie might say to you, "Oh, listen, Johnny and I are actually pretty good friends. In fact, I should have said something to him at the time, and I didn't want to embarrass him in front of the whole group. But he and I always go out to our cars together in the parking lot, and I'll say something to him when we go out to our cars."

And then your response, because she obviously has every right to do that, would be, "Okay, great. I tell you what. When you come in to work tomorrow morning, why don't you check in here, because I want to see how it went. But even though you're talking to him, I'm still going to have to say something to him." All right? Now, the third scenario might be, "I want you to get that SOB out of my department and he needs to be fired." Whoa, that's kind of a strong response, but you might hear it. Probably not for a dirty joke, but you get the idea. And you would say, "Ah, Susie, I can see that you're upset by this. I understand that. Let's go ahead and do an investigation and see what comes up before we decide what we're going to be doing going forward. All right?" And the fourth thing you might hear is, "You know what, I don't want to go back up to my department and work with him."

Now you're going to have to make a decision as to whether or not you will have to take any interim action. And that decision is usually made in conjunction with a manager. Now, be very careful here if you have to take interim actions that you don't give that interim action to the accuser at the expense of the accused, because it can be seen as retaliation. So your question needs to be, "Well, Susie, are you saying that you would like Johnny moved to another department?" And Susie might say yes. Now, that would all be just great unless you all work in a very, or Susie and Johnny work, let's say, in a highly specialized area. Let's say they're scientists, let's say they're doing research on cancer and this is the only lab. Where are you going to put Johnny? So you can see that that can be a challenge.

Now, you'll look at the bottom and it says, "At the conclusion of the interview," we'll get to the first bullet there about accuracy a little bit later. Let every individual that you interview know that they should come to you if they come up with some other information, and you do inform the victim. Now, in Susie's case it wouldn't sit, but you would inform the victim that they have the right to contact the EEOC, your state's human rights department, or an attorney. Or if there's been an assault, to call the police. And you can either call the police or they can. All right? So those are sample interview questions for the target.

Now, these are examples of retaliation. I've seen some pretty nasty retaliation. I'll give you a couple examples of the worst ones I've seen. Keying somebody's car and using a key to put a nasty message on the car. There was another case where there was a group of guys that were being accused of pretty severe sexual harassment by several women. So they followed the women home and the guys were in a pickup truck. They had a rifle gun, I don't know what they had, I'm not a gun person, and they were following the women, shooting at the tires of their car.

So the ones that are on the screen right now are pretty benign compared to others. Now, these are additional types of retaliation. The EEOC refers to them as tangible employment actions, and as you look at those, you can see that these are pretty heavy duty because these types of retaliation have an impact on the individual's pay. You know what, I'm sure you're hearing that ding. Just hold on a second. I should have done it earlier. I am going to turn my speaker way down. I apologize for that. So anyway, these would carry a pretty hefty response to whomever is retaliating, primarily to be fired.

Now, these are the documents that you want to review. We've mentioned the policies and procedures, I've mentioned employee union grievance procedure. You would also want to check out the employee handbook. I always look at the personnel files of the accuser and the accused. I don't do it for the witnesses. Check out emails, if it's appropriate, text messages, voicemail messages, telephone records, and home computers and personal electronic devices like their smartphone or their iPad or their tablet, pardon me, their...What am I talking about? I can't think of the word. Your laptop. Jeez. Anyway, check all that out, and then all the documents that you need. Now, those might be both electronic and hard copy.

Now, the documents are going to be any kind of documents that were done by the witnesses or by the accuser or the accused, if they had documented what they observed or experienced. The other documents that you want to access are the EEOC's documents that are online. They are excellent, and the EEOC, oh, they've got the guidance for sexual harassment and sex discrimination. They've even got one dealing with people from the Middle East and race and religion and LGBTQ. So you want to download those documents from the EEOC because you will be using those documents when you form your conclusions and when you are writing your final report.

You will also, if relevant, take a look at any video surveillance or listening to audio, and then what about social networks? Now, do be aware that the National Labor Review Act does have some surveillance issues and privacy issues. So just be sure that you're in touch with those, but these are the kinds of documents and evidence that you would want to be reviewing. Now, that is a pretty inclusive list. I'm not saying I'm not missing anything, but that's pretty well inclusive.

So interim action. I mentioned that before. When might you want to do that? Well, certainly if there's been an assault or a threat of physical harm. The first "bullying" lawsuit, and there are no actionable state bullying laws and there's no federal bullying law, but the first that was called bullying lawsuit because they allowed a bullying expert to testify, but it was really on negligence and a bunch of other civil torts. Anyway, in this particular case it occurred in an operating room and it was a cardiovascular surgeon who was very angry at the heart lung machine operator, and when the surgery was done, thank goodness, the surgeon started yelling at the heart lung machine operator and getting in his face so that the heart lung machine operator had to keep backing up and backing up until he backed up into a corner, and he was scared to death that that surgeon was going to strike him.

Now, the surgeon did not strike him, and when he sued there were a couple of tort laws that he tried to get through, but the only one that the court would allow was assault and battery even though he was not hit. So if there is a threat of it as well. If the target is uncomfortable working with the accused or if the misconduct is ongoing. And you might say, "Well, why?" Well, some of it's pretty obvious. You don't want any further harm to the target or other people. You certainly want to protect the organization from liability, but you also need to protect the accused. Some people, hey, they want to retaliate against the accused.

So what about, now, talking to the accused? You've talked to the complainant. We'll say that was the victim. You've gotten the whole story from her or him, and by the way, if the victim has not documented their experience or experiences, ask them to please do so. All right, now it is time to talk to the accused. Do not put words into his or her mouth. Don't be shy from difficult questions and don't be surprised at denial, and this is never the time to trick the person.

Now, let's talk about these in just a little bit more depth. One of the things that I have found, and I had mentioned it earlier, is people are not always particularly articulate because they're nervous, and they don't speak in chronological order. So you're listening to them and you're going, "Huh? What did they just say?" So I will often say, I will paraphrase back and say, "Johnny, I'm not sure if I understood what you said. I heard you say A, B, and C. Did I hear you correctly? I don't want to put words in your mouth. So if I didn't, please correct me." So I say, "I don't want to put words in your mouth. So please let me know if I misunderstood."

You do not want to shy away from difficult questions. Now, I'm going to give you an example. This one is hard to hear. I don't know if any of you have ever heard of the misconduct called bagging. I know that it is done in some parts of the military, but it has been known to happen, although very rarely, in the workplace. So let me tell you what it is. This is when one man grabs another man by his penis and his scrotum. He squeezes and he twists. Now, obviously this hurts. On one of the men that this occurred to, it caused damage so that he was not ever able to father a child.

Now, let's say that George comes in to you and says, "I want to complain that Ted grabbed me in the crotch." Now, you might think, okay, that's enough, that's all I need. But is it? What is a crotch anyway? I mean, we think we know, but this is what I mean by can't shy away from difficult questions. You've got to say, "Well, George, tell me exactly what you mean by grabbing you in the crotch." And George is embarrassed and whatever. You might have to help him. Did he grab you in the penis? Did he grab you in the scrotum? And when you say grab, what do you mean? Was it a quick grab? Was it a twist? Was it a squeeze? Was it a hit? You need to get an idea of where this so called grab occurred. And when you think about what I described for bagging, that's very different than somebody just coming in and saying, "I was grabbed in the crotch." Now, hopefully you'll never have to ask that, and like I said, that's quite rare, but it also is a pretty explicit example.

Maybe somebody says, "Oh, they're telling dirty jokes and some of them have been really bad." You need to find out what those dirty jokes are. And sometimes I've asked about those dirty jokes, and it's like oh, I didn't really want to hear that. So anyway, I think that's pretty clear for tips for the accused. People will deny, and we'll talk about how you deal with that. And you don't ever try to trick the person. So what if the accused or quite frankly anybody refuses to meet with you? Well, you've got to communicate to them that meeting with you is their due process right and that they have the right to tell their side of the story, they have a right to give you the names of witnesses, etc., and that if they choose not to do that, it will mean that you'll only get one side of the story, which could have a detrimental impact on the outcome.

Now, they also need to be told that they could be disciplined for not engaging in the interview, and it should say this in your policies. Policies should say, and this should be all policies, that every employee is expected to abide by the interview process and to fail to do so may be disciplined including termination.

All right, so if it's a criminal investigation or if it's a criminal act and you are doing the investigation, you must inform the accused of his or her right to an attorney and let them call that attorney then, and that either they can or you will call law enforcement at that time. Now, let me remind you, you are not doing a criminal investigation. You're not qualified. You are doing, at least I'm assuming none of you are, that might be wrong, you are doing a civil investigation. And you are not a criminal attorney and you are not law enforcement. Consequently you can only "guess" if something is criminal.

So for example, if one individual punched another in the jaw, that is probably criminal. You don't know for sure, so that's why law enforcement is called to make that determination, and the accused can call his or her attorney. If a woman has been grabbed in the breast, you can assume that that's criminal, but you are not an expert in making that determination. So you call law enforcement and you make sure that the accused calls his or her attorney. And this all gets documented, of course.

Now, remember earlier when I told you that there were routine statements that you would be making to every individual you interviewed? One of them was, "Are you voluntarily taking part in this investigation?" And this is to document that the employee is not being confined when they do not want to be. Or in other words, false imprisonment. So this is when you are intending to confine the employment, they are very much aware of what you are doing, and hey, you know what, they didn't give you permission. So how do you combat that?

Well, number one is what I mentioned. You ask if they're willing to participate, and try to meet in a neutral location. You know, with you all being attorneys, if you are called in as an external investigator, ask them if you can meet in maybe a conference room that's at the end of a hallway so there's more privacy. If you are employed by the company, don't bring them into your lawyer office. That's going to be so intimidating. Now, to me, I don't think intimidation helps. I have a colleague who does investigations, and she says, "Boy, let them be intimidated. The more intimidated, the better." I think it works against you.

Now, that might be a judgement call, but I want them to be relaxed. I make a point of having bottles of water or pop there. I might have coffee, I might have donuts or cookies. It depends, of course, but I want them relaxed because I think they give you more information. That's my opinion. So be in a neutral location. Be sure that they have access to the door. So in other words, you don't want to be sitting between them and the door. I always let them know that if they need to take a break, to let me know, if they need to go to the bathroom, to let me know, if they need to get up and walk around a little bit, because if they're tired of sitting, just go ahead and do it. But anytime they tell you to stop, you stop. And then you document any unusual occurrences. Now, unusual to you might be different than it is to me. I document when people cry. So I always have a box of Kleenex in my room, too. I do not document if people just get up and need to stand up. But if somebody is pacing, I document if they pace. I once had the accused sit down on the floor, put his head in his hands, and just sob. I documented that. You may have somebody who gets angry, and anger is okay, but it depends how they express it. So if they take their fist and pound it on the table, you want to document that.

Now, another thing you need to be aware of is defamation, which is false communication that is intended to harm somebody's reputation using public ridicule and contempt. Now, defamation can occur anywhere during the investigation. And remember earlier I told you that when you're investigating and talking to people, you always speak in terms of investigating a possible violation of a policy. You're not saying that you're investigating bullying or harassment. You always talk about it in terms of the policy.

So this is a handout, I'm not going to go through it, that you can review following today's webinar that are tips about avoiding defamation. Now, think about the accused. You've brought him or her into your office or into, pardon me, let's say a conference room. And think about it if this was you, that you'd be brimming with questions, wouldn't you? You'd be wanting to know what was said and by whom, and you would want to know what's going to happen to me? You might be worried, angry, defensive, and you might even be indignant. You know, what are you doing calling me in here? I would never do this. And those would all be normal reactions, right?

Now, you might also get somebody in there that doesn't emote. But don't be concerned about these kinds of reactions by the accused. Now, when interviewing, of course, you do not ever reveal the names of others interviewed and you do not tell the accused who was the complainant. Now, they might figure it out. In fact, they probably will, but their assumption is that it's the target, not a witness. So just keep that in mind. You don't ever give a personal opinion and you don't counsel anybody. All right?

Now, here are tips on interviewing the accused, and they're similar to the tips on the accuser, and I'm going to give you some on witnesses as well. But there you go, and I think you'll find that helpful. And then I've also provided you with sample interview questions for the accused, again, that I think will be helpful. And you know, I want you to look at, let's see here, I can't see it because I can't get the darn screen big enough, but anyway, you can be empathetic with this person. You don't have to be mean and short and whatever. I mean, I let them know, hey, I know it's tough to come in here and be interviewed, and we'll try to make it, I always say we'll try to make it as painless as possible. Again, I'm trying to put them at ease. And remember, you are a fact finder. You don't know if this person did this or not. So you can empathize. Think how you would feel if you were called in.

Now, there is something called an informal resolution. So what is it? Can somebody just put in on the chat, can you see this to read it or not? Will somebody just let me know yay or nay? Rochelle, are you on? Or somebody, can you see this to read it? Will somebody let me know in the chat? Pardon me?

Rochelle: I can see it.

Susan: Okay, good, because I can't at all. So what I'd like you to do, thank you, is I'd like you first of all to, I'm going to give you about a minute, and I want you to peruse through this slide remembering that today's webinar is on a formal investigation. So go ahead and just quickly peruse through it. I'm going to give you about a minute to do so.

[01:16:46]
[Silence]
[01:17:08]

Okay, now I think one of the best ways to demonstrate this is we're going to go back to Johnny and Susie. All right? So Susie comes in, she tells you about Johnny. You've asked her, "Have you ever heard Johnny tell dirty jokes before?" And she says, "No. In fact, it's just not like him." So you bring Johnny in, you go through your spiel, and Johnny acknowledges that he told the dirty jokes. You now will implement the formal resolution. You don't need to do an investigation. Susie says she's never heard him do it before, Johnny owns that he did it. So what you do, however, is you will give Johnny a copy of your harassment policy, you let him know that telling dirty jokes is a violation of the policy. That's the second thing.

And the third thing you do is you say, "Johnny, I want a commitment from you that this will not happen again." And Johnny gives you the commitment, and off he goes. But you document all of this, including that Johnny gave you a commitment. And the documentation goes into Johnny's personnel file as well as the, I'm going to say the HR file that keeps track of all of these things. Now let's say that Susie tells you, when you ask her if she's heard him tell jokes before, she says, "Well, yeah, I've got to tell you in the last month it's become quite an issue, and his jokes are getting increasingly more dirty and virulent."

Okay, now you bring Johnny in and you ask Johnny about it and he says, "That's a lie. I have never, ever told any dirty jokes." Well, now you hook into a formal investigation, because you've got a he said/she said, and you've got to figure out what's going on. So to do that, you've got names of witnesses from Susie and you've got names of witnesses perhaps from Johnny. So now you go forward into this formal investigation. I hope that made sense to you.

Okay, now who is a witness? Oh, before we get here, let me ask you, or at the witness point there is a decision to be made. When I used to, when I first started doing investigations, I would always of course take the complaint and then I would interview the accused and then the witnesses. But what I found more often than not is that the witnesses were supportive of the accuser's rendition of the facts and did not support what the accused said. So then I was always having to go back and ask the accused again and ask more probing questions. So I don't do it that way anymore. I go right to the witnesses of the accuser before I interview the accused. That's a judgement call on my part. You may not want to do it that way, but I do it that way so that if the witnesses do support the accuser and if Johnny in this case indicates that it's all a lie, then I can say to Johnny, "Johnny, now I've heard from three different people that you did, that you have been telling dirty jokes with a fair amount of regularity. Are you saying that they're lying?" So that's a probing question. You push back on him, and it's hard to tell when people are lying. It is, we're not good at it. I was just doing some reading on the research about lying, and it said we're not good. In fact, the only people that were even halfway decent at determining if there was a lie were Secret Service agents. Judges, attorneys, investigators, HR, managers were terrible at it. And we think if somebody has good eye contact and not fidgeting that they're not lying, and both of those are false.

So this is where you have to determine credibility, and I'll get into that in some other ways. What I will hear sometimes from the accused is, "Well, they might just have thought something was a dirty joke when in fact I didn't mean it that way. I can't control how other people perceive my jokes." So they will sometimes kind of hedge a little bit. So I do interview the witnesses first, but again, it's a judgement call.

Okay, so pardon me, I didn't even talk about, so who are the witnesses? And you can look here on the slide, and I want to exemplify the second bullet. Anyone with knowledge of the situation. So it could be coworker, supervisor, and look there. Family members, and you might be going, huh? Wait a minute, isn't that hearsay? Oh yes, it is. But we don't care. Remember? Think about it for a minute. If you had just been sexually harassed and you went home that day, you would end up having a roommate or a spouse or a partner or a mom and dad or whomever, and you probably told them what happened. So a family member would be able to be a witness to the fact that you told them on this day what the story was. So that counts. And you don't ever interview character witnesses.

All right, so here are tips, then, for interviewing witnesses. I think you'll find this helpful, more tips. Okay, and it ties in pretty much with everything else that we've talked about, and here are sample interview questions for the witnesses that I think you'll find helpful. All right? And one other thing I'm giving you, although I'll tell you right now I don't ever use statements. I don't like them, I don't think there's a reason you need to use them. I've been involved as an expert on cases where that's what the attorney or the investigator if they were two different ones used, I don't think there's any excuse to use them. We've got telephones, we've got facetime, we've got What's App, we've got video conferencing. There is no reason why you should take a statement. You can't ask any questions when somebody is giving a statement, their writing is poor, they use ambiguous terminology. To me they're useless. But I wanted to give them to you anyway just in case you thought you might need to use them at some point.

Now, there are sometimes difficult questions that come up. The first one, of course, I think we've already answered. Number two we've already answered. If I tell the truth, will I be disciplined or fired? Well, you might. Do I need a lawyer? No, this is just fact finding, unless of course it's a potential crime, or if they're in a union they might have the right to an attorney. How will what I tell you be used? We've talked about that because we talked about it with note taking. Is there anything I can't or shouldn't tell you? No. What if someone gets fired because of what I tell you? Nobody gets fired because of what anybody tells you. People get fired based on their own behavior. What are my rights? And we've already talked about due process rights. Who else will you be talking to? They don't get to know. Should I have someone here from the union? Absolutely, if they would like? And am I being investigated? Only if they are.

So I want to quickly offer the opportunity if anybody's got any questions at this point to ask them. So any quick questions right now?

Rochelle: Thanks, Susan. If all the attendees can enter in the passcode for today, which is "bullying" and any questions that you have for Susan. Also, the downloaded slides were able to be put into the resource list. So please try and refresh your browser, and they should pop up. Our first question, why not hire a retired cop or private eye to investigate?

Susan: Well, because they don't know how to do civil rights investigations. Cops only deal with criminals, and so do private eyes. So they don't know how to do these. And besides that, even a retired cop, I mean, I don't know that cops...Well, I guess they do criminal investigations. They wouldn't know how to do a civil investigation. There are too many differences.

Rochelle: Next question. So is the harasser left the employer, the employer should not investigate the harassment if it's race related, and why?

Susan: Okay, I missed the first part, Rochelle. It didn't come through real clear. If what?

Rochelle: So if the harasser left the employer, the employer should not investigate the harassment if it's race related, and why?

Susan: Oh, absolutely they still need to investigate. It doesn't matter if the harasser quit the employer. You've still had a complaint and you still need to investigate, and we'll be getting into a little bit more because what are you going to do to remedy the situation for the targets? And then this also lets you know what do we need to do regarding training, regarding our policies? What's going on here? What do we need to do in terms of looking at this as an organization? So yes, you still need to conduct an investigation. Good question.

Rochelle: Next question. Should a company investigate an anonymous complaint letter making broad, nonspecific allegations of bullying and hostility by a general manager?

Susan: So was the first part, does it say which department or which manager? Let me read it. Should a company with an anonymous complaint do a broad...Oh, nonspecific. Yes, they still need to do what I mentioned earlier about an anonymous complaint, that they would send a message out to all managers, quite frankly, and let them know that there has been a complaint of allegations of bullying and hostility by, and you can choose whether you want to say by those in management. You can say, "Those in management," and that mangers need to take a look at their own behavior. In fact, you know what I would do in this particular case? I take that back. I would send out that email and I would have a meeting. I would call all the managers in and have a meeting and let them know that there has been an anonymous complaint and this is what it is, and go over probably this would be in your code of conduct if it's bullying and hostility and it's not harassment, but you go over the code of conduct.

Now, I would do that with all managers. However, if the complaint is against a specific general manager, even though it is nonspecific and broad, then you still, I would have a meeting with the general manager and let them know that there's been a complaint against them, be sure that you talk about the code of conduct, what kinds of behaviors this general manager might be engaging in, and maybe talk to the manager about needing to attend training, and maybe the complaint did say something about the way the manager gives feedback. So they take a communication class or whatever. So I would do two things then.

One, I would meet with all managers, and even though it was only against the general manager, use it as an opportunity to inform everybody, hey, this stuff goes on and this is what you need to be aware of. But then meet on a one to one with the general manager. But you do need to follow through and you do need to document. Even though bullying and hostility, again, it's not actionable, you don't know. You know, attorneys are getting pretty smart and using other tort laws to bring charges, and you want everything documented so that if you've got an employee and an attorney who are going to be bringing any other tort laws against you, you want to have your ducks in a row and have everything documented that you responded.

Rochelle: Next question. Don't both harassment and bullying contain an element of the same [inaudible 01:30:36] status compared with the alleged victim? If so, what's the difference between harassment and bullying?

Susan: Oh, I'm so glad you asked that, and just hang on because I'm going to talk about it. So if you can just wait for a minute on that, that's going to be discussed. So good, I'm so glad somebody asked that, because that is not clear. And to be honest with you, even when I'm doing expert witness work dealing with this stuff in K-12, attorneys will ask, they say, "I don't know the difference between bullying and harassment." So it's so common, and there is confusion about it. So I'm so glad you asked and I will be getting to that. Rochelle, what I'd like to do is keep going and then the other questions if we can take them at the end, because I do want to get through this.

Rochelle: Perfect. Thank you.

Susan: Okay. So let's keep going now. Now, after interviewing, now remember I told you to have one piece of paper, one sheet that has all the questions and another one that will have all the answers. So this is what I want you to do. In the upper left-hand corner of both pages, I want you to put the date, I want you to put your signature, your name, and I want you to put the start time and the end time of the interview. You put the name of the person, the position they have in the organization, and the role that they have in the interview process. You will also identify the location of the interview and then we've already talked about you have all your questions asked on the one page, except for the spontaneous questions. This will go on the answer sheet.

Now, when you're done, when you've written all the answers and the questions, you provide that document after the interview to the interviewee and make sure that it's clear and accurate. Now, to be honest with you, my writing is so terrible they'd never be able to read it, and I've got my own little shorthand that I use. So I don't have them review it until after I've typed it up. But you have them review it and then you ask them to sign it and to date it. Now, some people don't want to sign, and that's all right. You cannot require it. So you can sign and you can sign that Susie agrees that the documentation is correct. You put the date.

Now, maybe Susie will say, "Oh no, this part right here isn't right. I think we had a misunderstanding." That's fine. You say, "Oh, okay." Put a line at the end of your interview questions and answers, and have her or you, either one, write down what she had either meant to say and misspoke or whatever, but you want to get the correct [inaudible 01:33:39] That will be an addendum, and then you have her sign it if she will, or you do. Okay?

Now, I do not type mine when I'm interviewing. To me it's rude. There's the click, click, click of the computer keys. People tend to be looking up at the monitor. I just think it's rude. So I write and I try to have some eye contact with the person, and I can't always get it word for word, obviously, but I try to get it as close as I can, I use verbatim quotes as much as I can.

Now, on another sheet of paper, what you will do is you will document any of the observations that you made and whether or not each interviewee is credible and why. But you will not allow the interviewee to see that information. So that goes on a separate sheet of paper yet. All right?

Now, this is a handout for you on your documentation. And I'm giving that to you to read after the webinar just because there's so much for us to cover. But I've covered all of it or will be covering it. Okay, so this is about documentation. And a little bit more, now this gets into credibility assessments, and I'm going to be talking a little bit more about credibility shortly. But let's look at good documentation.

So as you look, I'm going to give you a couple of seconds to quickly read through those good examples, and what you see is it's all based on observable, objective behavior. Now, let's contrast that with poor documentation. So let's look at the top right. Pat disrupts meeting with offensive comments. Too vague, too ambiguous. What do we mean by offensive comments? So if you were to use something like that, you could say, "So-and-so and so-and-so state," those would be witnesses, "that Pat disrupts meetings with offensive comments such as," colon, bing, bing, bing. And you identify them.

Lower right, "Trisha is lying." You don't ever use a label like that. Instead, you would say something like this, "Trisha's rendition of the incident is in direct contrast to the three witnesses in the following ways," bing, bing, bing. Anthony harassed Ed. What does harass mean? We don't know. So you would say, "Anthony grabbed Ed in the buttocks and said, "Come on, baby, let's go." Jack is a jerk. Again, that's a label, we don't use that. Instead, you'd say, "So-and-so and so-and-so," these would be his colleagues, "state that Jack is rude and disrespectful in the following ways," bing, bing, bing. Okay? So you turn these poor examples into good examples by making them observable, objective. All right?

Now, this is a little bit more information on documentation. Now, how do you assess credibility? All right, for each individual. Now take a look at this. This you will have. You will have to document if you think each person is credible and why. Now, this gives you a bunch of bullets. You don't need to necessarily include every one of these, but you can't just say, "Well, their story makes sense and it's logical." Well, how did it make sense and was logical? Or maybe you're talking about corroborating evidence. Well, what was that corroborating evidence? Or maybe you're talking about a detailed complaint. And by the way, people that are lying usually do not have a detailed complaint. So you would give the example. Now, you'll notice that it says, one, two, three...I should have these numbered, one, two, three, four, five. I think it's the fifth one from the bottom. Sixth one from the bottom. Nope, fifth.

Timing. Is there a delay in coming forward? You know, don't worry about that very much. It used to be more of an issue, but we know now that people just wait to come forward for, they're afraid and they think they're going to be retaliated against. But you can ask them, "I noticed that this last incident happened a month ago. Tell me why you're coming forward today." Be careful that you're not blaming or shaming. Try not to use the word "why." Instead say, "How come." All right? So you will need to determine what happened. Can you determine what happened? Was there a violation of the policy or the law? So this talks about the evidence that you will review and that you do need to make a determination. Again, this is a handout for after the webinar.

Now you've got to reach conclusions. This is critical. This is what I see missing. I don't know if I've ever seen an investigator actually state in any documentation, here's the deal, they don't even document, and let alone write a report, how they came to their conclusions. They don't even formally state what the conclusions were. So you need to use these bullets in determining what your opinion is. Okay? Now if you look not quite halfway down, it says, "EEOC Guidelines, case law, Title VII, Title IX, other civil rights laws," all right? And it's not enough to just say, "Well, the EEOC guidance on sexual harassment, they did it."

No, you've got to say, "On such-and-such a page," and sometimes the pages aren't there, so you've got to give the link, and then you would say, "Paragraph 3, section 1A. The EEOC guidelines state," blah, blah, blah. In this incident this did not occur. So you've got to be very specific in your documentation as to how you reached the conclusion. So not only that these bullet points were used in you reaching your conclusions, but what about these bullet points had you reach your conclusions. Okay? I just can't stress that enough.

So don't be afraid to make a mistake, and yes, there are he said/she saids, but there's not very many of them, and one of the reasons is you have to decide who to believe. And you think, well, do I use it based on a reasonable doubt or preponderance of evidence? And probably many of you know this, it's a preponderance of the evidence. Beyond a reasonable doubt is criminal. This is civil. Preponderance of evidence. In other words, more likely than not. That's the verbiage you need to use. More likely than not, you find that Johnny did X, Y, and Z, or Johnny did not do X, Y, and Z. But you've got to identify what that evidence is. All right?

Now, be sure that you've got all your human rights business down. Or pardon me, not your human rights, excuse me, your federal and state laws. So look at whatever your state's human rights act is or civil rights, and every state has it different, but of course there's all of these others, too. Now, one thing with the LGBTQI, and I don't know how much you all are keeping in close contact with the law on that, but you know, we don't really know what's going on federally with this. It's jumping in a lake, but there are many states that protect this community, and even when there may not be a protection by federal or state, although federal is iffy, they are protected by cities. And here's another thing I want you to be aware of. Transgender individuals, there have been a couple of cases where appellate courts have protected them under the American Disabilities Act. So keep that in mind. Why? Because they have a diagnosis. The diagnosis is gender dysphoria.

We've also had appellate courts that have stated that the LGBTQI community/population is protected under Title VII. Now, we've had others that say it is not. So this will be an issue that will go to the Supreme Court for them to decide. I doubt if we're going to see any passage of any law from our current Congress. So let's go through this because you also will have to, we're going to go back to Susie and Johnny. So you all know, I'm sure, what the definition of sexual harassment is that came about in 1980. It's vague, it's ambiguous. I mean, what is an advance? What is a favor? So each time a case has gone to court, it's fine-tuned and gotten their arms around what it means.

So let's go to the upper left. The first thing you will look at is, was the behavior welcomed? Now, you have to document this. How do you know if it was or was not welcomed? And this slide got a little skewed, but I want you to skip over then to the upper right, because then you have to figure out is the behavior, now this deals only with harassment, not bullying, was the alleged harassment severe and/or pervasive enough that it interfered with the individual's ability to do, in this case, her job and create a hostile work environment based on a reasonable...Now the standard is called a Reasonable Person Standard, but often a Reasonable Woman Standard is used or a Reasonable Victim, and is it sexual and/or gender-based or is it based on any protected class? So let me put this, again, because it gets confusing.

You will have to make this determination. And first of all, almost everybody's policy has this as a definition, and this is the law based on Title VII. So let's go to Susie and Johnny. Susie complains to you. Was it unwelcomed? Yes. How do you know? She told me. Was it severe and/or pervasive enough that it interfered with Susie's ability to do her job and created a hostile work environment based on a reasonable woman and was it sexual? Well, it was not severe and/or pervasive, and what I would recommend that you do if you've not actually taken a class or a webinar on harassment, because when I do them I get into what is severe and/or pervasive, so go online and read about it. And what you will find is even that can be ambiguous.

Generally speaking, if something is severe, it means that it was a sexual assault, or using the N word one time has been determined by at least two appellate courts that it was severe enough that it was back down to the lower court for a trial. So it changes. Pervasive is, is it pervasive within a department, is it pervasive on the individual, is it pervasive within the organization? So I would encourage you if you are going to be doing an investigation, to read up on some of the case law about what is severe and/or pervasive. And then reasonable person is the name of the standard, but like I said, woman and victim get used, and was it sexual? Now, in Susie's case it wasn't severe, it wasn't pervasive, and would reasonable woman find so? I don't think so. Now, reasonable, the reasonable standard is up for grabs. It is attacked in the legal literature, it's attacked in the HR literature, and some of this is a judgement call.

Was it sexual? Yeah, he told sexual jokes. But because it wasn't severe and/or pervasive, guess what? It might have been against policy, but it wasn't against the law. Now, you notice it says, "Or gender based." This is where we have the nexus of bullying and harassment. Let's say, for example, that Johnny "bullies," and by the way, if you have a code of conduct policy, if you use the word "bullying," make sure that you've got a definition of what it means, because there are several, and that you give examples of behavior that are and are not bullying. Also, be aware that OSHA in their definition of violence in the workplace, while they don't use the word "bullying and harassment," they do identify behaviors that are typically considered bullying and harassment. So might you, when you're doing an investigation, need to also look at the organization's workplace violence policy if they have one, or the OSHA policy?

Now, I didn't mention those in the beginning because they're not typically accessed during an investigation, but I want to throw those out as a possibility. So let's say that Johnny "bullies" only women that he works with. He doesn't do anything sexual, he doesn't say anything overtly sexual, no dirty jokes, no touching, no sexual innuendo, no name-calling, but he bullies them and he only bullies them because they're women. That is the nexus of sexual harassment and bullying.

So the same thing is true for the other protected classes. Let's say Johnny only bullies blacks or LGBTQ or Muslims or people that are 70 and older. You get the idea. So when we talk about a reasonable victim, it could be that Johnny is making overt racial or age or other discriminatory comments because of somebody's protected class, or that Johnny is bullying them because of their protected class. And that is the nexus of the two forms of misconduct. So be sure you know the protected classes then, okay? And gender harassment is what we call it when it is the "bullying," and that is a combination or the nexus of these three forms of misconduct. But it could be race-based harassment or disability-based harassment, etc.

Now, I was talking about hostile environment form of the law, and I did not mention quid pro quo. Now, quid pro quo has absolute liability. So if you've got anybody that's in a management position that is offering one sort of a benefit in exchange for either sex or a date or late night meetings or whatever one time, and there is absolute liability. Once. So be aware of that one.

Okay, this gives you an idea for gender harassment. Gender harassment is other forms of harassment or referred to as the hostile environment form of the law. It's different than the quid pro quo we just talked about. And if anybody comes to complain that they are "being bullied" but you take a look at the environmental context in which they work, the gender typing of their occupation, the gender composition of the work group if it's skewed one way or the other, and you know that that particular department, we'll say, has a lot of horsing around. Well, I tell you, those are cues that you can about imagine that it may not be bullying, but in fact, gender-based harassment. All right? So be aware of that. And again, there's race-based, disability-based, etc.

Now, these are some of the common tort laws that attorneys and bullied employees are using. They're difficult to get into the courts. Well, the one that I get called in all the time is for negligence. Some of you that are on may by much more informed of these tort laws than I am, but in terms of "bullying," it's the negligence, negligent supervision primarily. You'd think that intentional infliction of emotional distress, that one is really tough to get into the court. Be sure you're aware that all the social media stuff, everything we're talking about in face to face, person to person applies to social media as well.

Now, if you've done the investigation, and if you find that you cannot substantiate what happened, take a look at the screen because it gives you the verbiage that you can use with the accused. And you'll note that it says you're going to document the conversation and place it in both of their files. Now, I want to be clear, it's a little confusing here. It goes on...Well, wait and see. I'll get it clear when we get there. You will follow up in the action. So you're going to let each, the accuser and the accused, know the answers to these, how many were interviewed, what did you consider for evidence, how did you draw your conclusions, and the appeal process. They do have the right to an appeal, but I'll tell you that in a second. And you document their responses. Everything you do in this investigation is documented. So you want to make sure that if you're doing some little graffiti on the side, that you don't put anything down there like "What a jerk" because it's all discoverable.

So you're going to have to determine what actions are you going to take, what are you going to do for the victim? What are you going to do about the harasser, and did this incident tell you that you need to do some additional training, and what kind of training, and do managers need some additional training, such as how do they identify if there's bullying and harassment? You'd be amazed at how people don't recognize it. And how do they intervene on it and how do they prevent it? What are you going to do to heal the workplace? And then what about the policy? Does it need some revisions and does it need to be disseminated to everybody? What are you going to do to make the victim whole? And this slide gives you some examples. And this probably would be done with HR and the manager.

You have to make the discipline stop, and I've got a typo there, and you've got to ensure that the harassment does not recur. So that is what the discipline needs to do. And so you've got to ask yourself how you're going to feel sitting in a witness chair in a courtroom under oath explaining your actions. You're going to have to think about that. Now, you all are attorneys, and I don't know if you do litigation or not, but if you're an investigator, you may be on that witness stand. And I'll tell you, it ain't fun. I've only had to be in court once. I've done about 40 different expert witness cases, and almost all of them, they don't go to court. It's all doing depositions, and they're not fun either. Some of your colleagues can be quite the challenge.

So what are you going to do to discipline the offenders? When you come up with a discipline, these are some of the questions that you want to ask. And one of them that's not there that needs to be there is, let's say Johnny, for example, was a maintenance worker. Whatever discipline you give Johnny needs to be consistent with whatever discipline you might have given to the vice president of research and development. So you've got to be consistent in your consequences. These are examples of corrective action.

Now, one thing I want to draw your attention to is, very often people want to apologize. If they want to apologize, they can do it, but this is how they have to do it. They need to put it in writing and give it to you for you to read first and to give to the accuser. What's happened is sometimes people will write the apology and then they'll add, "But you know what, Susie, if you wouldn't have done blah, blah, blah, then I would never have done it." So it becomes, in a way, retaliation, and you just want to make sure that doesn't happen.

Now, what about telling the victim the consequences to the perpetrator? Well, I would...Of course, you all are attorneys, but I've heard different things from different attorneys as to whether the accuser has right to know. Personally I think they do, but who am I? It's just my opinion. If you don't tell, this screen tells you what is the result. And if the harasser or the bully, for example, continues in his or her behavior, then the perception of those that work with the bully or the harasser is that the company didn't do a thing. But what they will know is that whatever the company did, it wasn't enough.

So you've got to make sure that you monitor the environment, and you have to have a purposeful meeting with the victim. That means you pull the victim into your office, you ask how things are going, you want to ensure that the misconduct has stopped and that there's no retaliation, and if necessary, you will have to have a purposeful meeting with the accused. Now, by purposeful I mean purposeful. And you document this. This isn't one of these meetings where you run into somebody in the bathroom or at the drinking fountain and say, "Hey, Susie, how's it going?" That doesn't constitute a real good, purposeful meeting.

Now, this is just a handout of everything we've pretty much talked about. You can have them appeal, but usually an appeal only occurs if there's new evidence. Just because somebody did not like the outcome does not mean that they get to appeal. This is a template for the final report. Like I said, we do a one-hour webinar on the final report. This is what goes into the appendix, which is the appendix of the final, the whole file. And this tells you what should go into the investigative file, we've pretty much talked about it, but this is what you'll put in each person's personnel file. The investigative file gets put into a locked drawer in your office or HR's office. This is what goes into the personnel files. And then I'm just giving you some other handouts to read as well. So this is a full two hours and I do want to give you the opportunity to ask questions. I've covered a lot, you've got handouts as well because it's impossible to do all of this in two hours without giving you handouts. So Rochelle, let's open it up to questions.

Rochelle: Thank you. We've only got time for a few questions, but if all the attendees can enter in the passcode for today which is "bullying," and all unanswered questions will go directly to Susan to answer them directly to you. So first question, when you say prompt action for investigation, you said EEOC states this where?

Susan: Okay, your voice is a little bit hard to hear. EEOC, nobody states what prompt means. The law doesn't and the EEOC doesn't. What they do say is you have to have prompt action, and they don't identify what prompt action means either. So nowhere is it written. It is suggested that it's 24-48 hours, but there can be, as I mentioned, legitimate delays. The sooner the better is my opinion, but the EEOC does not give a specific timeframe.

Rochelle: In addition to note taking, would it be prudent to tape the conversation, the tape recorder being visible, not hidden?

Susan: You know, that's your choice. It's a judgement call. To me, if they see the tape recorder, this is just my thinking, it can inhibit what they have to say. That's my opinion. It's not based on anything other than my opinion, and I just don't think it's necessary. I mean, what are you going to do with the recording? You're not going to listen to it again. It would take too long. And unless you end up in the courtroom and the attorney wants to listen to it, you wouldn't even really be using it. You have to have those notes. That's what's critical. I used to work in quality improvement, and we had a saying. In god we trust, all others must document. And if there's no documentation of an interview and if there's no documentation of assessment for credibility and conclusions and writing the final report, in my role as an expert I say no investigation occurred. So even if you do decide that you want to record it, it's not really going to matter. It's your notes that we need.

Rochelle: And our last question, is there any time that you would not interview the accused and simply make a decision?

Susan: No, because they have the right to due process. So you'd always want to interview the accused. You'd be violating their right to due process if you didn't.

Rochelle: Thanks, Susan. Again, unanswered questions will go directly to Susan to contact you. Please remember that if you are applying for CLE credit, you must have attended for the full 120 minutes of this presentation. You are also required to complete the survey at the end of the program. All certificates will be emailed to you within 24-48 hours after the presentation. I want to take this opportunity to thank everyone for attending, and most especially Susan Strauss for her time and effort in creating this presentation. If you'd like to speak with Susan, if you would like to speak with a TASA [SP] representative regarding the expert witness for a case that you're working on, please contact TASA at 1-800-523-2319. One of my colleagues will be following up with you regarding your feedback on today's program. This concludes our presentation for today.

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