He Said/She Said Harassment Cases: Who's Telling the Truth?

​HR must decide who is being more credible in harassment investigations when each side says the other is lying. Open-ended questions can help, according to Jeanine Gozdecki, an attorney with Midwest-based Barnes & Thornburg. Neutral investigators, timely questioning and a culture that encourages the reporting of incidents also are key to conducting accurate inquiries.

Open-Ended Inquiries

"One of the mistakes to avoid when doing the investigation is to lead with the conclusory sentence, 'A, were you sexually harassed by B?' or 'B, did you sexually harass A?' " she noted. The answer to the first will be yes, and the answer to the second will be no. This will lead to a stalemate. So the approach has to be different, she observed.

Questions to the complainer usually begin with open-ended inquiries about the work environment, the context of the allegations and the relationships—to have a better understanding of the environment in which something occurred, Gozdecki said. Questions could include:

• Who might have seen the interaction?
  
• Whom did she or he tell about it?
  
• Why was it uncomfortable?
  
• Did she or he say anything? What? To whom?
  

Checking Other Evidence

The accused is usually questioned toward the end of the investigation after other evidence, such as the following, has been checked:

• E-mails.
  
• Text messages.
  
• Surveillance cameras.
  
• Supervisory interviews.
  
• Other witnesses.
  

Questioning the Accused

Questions to the accused should protect the individuals who reported the allegations to minimize the possibility of retaliation, Gozdecki said. Procedures matter, so from start to finish, a good investigator tries to protect the person making the complaint and the individual against whom a complaint has been lodged, focusing on behavior, not the labels given by the complainer or the accused, Gozdecki said.

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Quiz: Is It Sexual Harassment?

She noted that as investigations and interviews progress, an investigator is likely to ask more direct questions, such as:

• "Tell me about … "
  
• "Multiple sources tell me they overheard you say X, Y and Z. What do you remember?"
  
• "Someone believes your conduct went too far. How would you respond?"
  

Never comment on the validity of statements made in interviews, cautioned Brian Markovitz, an attorney with Joseph Greenwald & Laake in Greenbelt, Md. "Make people comfortable first and then let them talk, and keep them talking," he said. "Make clear that people need to be honest in giving statements, or there could be repercussions for them. However, you don't want to go too far and make them feel threatened, or they might not talk. It's a delicate balance."

Credibility Finding

Sometimes deciding whom to believe is a judgment call, Markovitz noted.

It's not uncommon to have he said/she said allegations in harassment cases, said Patricia Wise, an attorney with Spengler Nathanson in Toledo, Ohio. 

She said that factors to consider in credibility determinations include:

• Consistency of any statements.
  
• Inherent plausibility.
  
• Motives of the parties and witnesses, if there are any.
  
• History of honesty or dishonesty.
  
• The extent that any witnesses could perceive and corroborate events.
  

Employers need to take both sides seriously and investigate all claims raised, noted Melissa Osipoff, an attorney with Fisher Phillips in New York City. Just because the employer has to make a credibility determination doesn't mean it should avoid reaching conclusions in the investigation, she said.

Rather than being inconclusive, Wise said, the investigation may determine that the evidence does not support the allegations.

Neutral Investigator

Often there aren't any witnesses, making the appointment of a neutral investigator to make credibility determinations particularly important, wrote Dilnaz Saleem and Karen Smith, attorneys with Baker Donelson in Houston, in an e-mail to SHRM Online.

"Even a perception of bias can call into question the integrity of the investigation," Wise said. "If bias exists, or if the accused or the complaining party has greater authority in the organization than the investigator, the use of a third-party investigator is recommended."

Investigation Timing

Different investigations will take varying amounts of time to conduct, noted Mark Spund, an attorney with Davidoff Hutcher & Citron LLP in Garden City, N.Y. An investigation into whether a worker made sexually charged remarks in a meeting could be settled fairly quickly if multiple witnesses each recall the incident the same way, he said.

More-complex investigations could take weeks, Wise noted.

Investigations should be prompt and should usually start within days of the allegations. Sometimes action must be taken immediately to end harassment to avoid further harm or physical violence, she added.

False Accusations

Anti-harassment policies should note that an employee who intentionally files a false report of wrongdoing may be subject to discipline, said Jennifer Sherven, an attorney with Kaufman Dolowich Voluck in Woodbury, N.Y.

[SHRM members-only sample policies: Nondiscrimination/Anti-harassment Policy and Complaint Procedure]

While an employer can terminate an at-will employee for any reason, even if the allegations are later found to be false, Sherven said that if accusations are learned to be untrue, the employer should discipline the worker who made the phony allegations.

Moreover, sham investigations that favor one gender could be sex discrimination, Wise cautioned.

Healthy Workplace Culture

The company should foster a company culture where reporting incidents and cooperating in investigations is encouraged, Osipoff observed. "The more cooperative witnesses are, the easier it is to thoroughly investigate claims."

The top brass needs to encourage reporting without fear of reprisals so that there is a culture where there won't be fear of being retaliated against for participating in investigations, she said.

 

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