5:020-AP1 Sample Questions for Conducting the Internal Sexual Harassment in the Workplace Investigation
5:020-AP Sample Questions and Considerations for Conducting the Internal Sexual Harassment in the Workplace Investigation
5:020-AP1AP Sample Questions and Considerations for Conducting the Internal Sexual Harassment in the Workplace Investigation
The person charged with conducting the internal sexual harassment investigation must ascertain whether the sexual conduct is unwelcome and whether it affects a term or condition of employment (29 C.F.R. §1604.11(a). The questions that follow are designed to help the investigator uncover this evidence. They are not all-inclusive and the exact questions must be designed for the specific allegations in each case.
Is the conduct complained of unwelcome sexual conduct?
“Unwelcome sexual conduct” is that verbal or physical sexual conduct which the employee did not solicit or incite and that which the employee regarded as undesirable or offensive. It is difficult to discern because the line between welcome and unwelcome sexual conduct is often quite fuzzy. The EEOC evaluates the issue of welcomeness in sexual harassment cases on a case-by-case basis. It looks at the record as a whole, considering the totality of the circumstances. The wise investigator will do the same.
Below are sample questions that can be used to formulate actual questions for this part of the investigation. When conducting an investigation a balance must be struck between fact finding and sensitivity. The investigator can neither blame the victim nor base data collection on any sort of pre-conceived notion.
Who is the alleged sexual harasser? What is his/her name? Is he/she a co-worker or a supervisor?
Is the sexual conduct complained of verbal or physical?
If physical, describe with specificity the nature of the physical conduct, including where the complainant was touched, when, how often, how he/she was approached, who witnessed the physical conduct, and where was the complainant when the conduct took place?
Was medical treatment required? If so, when was he/she treated, how often, by whom, where was he/she treated, and what was the diagnosis?
If medical treatment was not required, was a contemporaneous complaint or protest made to anyone employed by the District or to anyone else? If so, to whom did he/she complain, when was the complaint made, what was stated therein and were there any witnesses to this or these complaints?
If the unwelcome conduct was verbal, what was stated, when, how often, where were the parties when the statements were made, and who witnessed the statements being made?
Was medical treatment required to address the impact of the verbal conduct? If so, when was he/she treated, how often, by whom, where was he/she treated, and what was the diagnosis?
If medical treatment was not required to address the impact of the verbal conduct, was a contemporaneous complaint or protest made to anyone employed by the employer or to anyone else? If so, to whom did he/she complain, when was the complaint made, what was stated therein and were there any witnesses to this or these complaints?
What was the complainant’s response to the physical or verbal conduct? Did he/she tell him/her to stop? Did he/she complain to others about his/her behavior? Did he/she ask co-workers, supervisors or managers to make the harassment stop? If so, obtain all relevant details.
Did the complainant engage in any conduct with the alleged harasser that could have encouraged his/her behavior? If so, what was the conduct, when and where did it occur, how often and who witnessed it?
Did the complainant and the alleged harasser have a prior consensual relationship? If so, how long did it last and when did that relationship end?
Did the complainant make the alleged harasser aware at the point when the sexual advances became unwelcome? If so, when, how was this done, what was communicated to the alleged harasser, and were there any witnesses?
Did the complainant complain about the harassment to the alleged harasser, his/her supervisors, other managers or others? If so, when were the complaints made, what was said, who was present, and what was the response to each complaint?
If no complaints about the alleged harassment were made, why not?
What other actions, if any, did the complainant take to indicate to the alleged harasser that his/her conduct was unwelcome?
Did the complainant engage in any conduct which elicited the unwelcome conduct of the alleged harasser? For example, how did he/she demean him or herself in the workplace, how did he/she dress, did he/she use sexual and provocative language, did he/she engage in sexually provocative conduct, and was this conduct directed towards the alleged harasser?
If they lack knowledge about the harassment, did co-workers, supervisors or managers notice any changes in charging party’s behavior at work or in the alleged harasser’s treatment of the charging party?
Has the alleged harasser been accused of sexual harassment by other employees? If so, when, and were the allegations investigated? If so, what was the result of the investigation, and what was management’s response, i.e., what remedy was imposed?
Did the work environment become hostile?
To ascertain whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the major inquiry is whether the conduct “unreasonably interferes with an individual’s performance” or creates “an intimidating, hostile, or offensive working environment.” (29 C.F.R. §1601.11(a)3). Thus, trivial or annoying conduct such as sexual flirtation or innuendo or vulgar language would probably not establish a hostile environment. The challenged conduct must substantially affect the work environment of a reasonable person for a violation to be found.
Consider the following additional questions for this part of the inquiry:
What effect, if any, did the alleged harassment have upon the complainant’s ability to perform his/her job?
What effect, if any, did the alleged harassment have upon the complainant’s mental or physical health or well-being?
What was the sexual character of the work environment before the complainant entered the environment? Were sexual comments and actions common? If so, what types, when did they occur? Who was involved? Were supervisors involved or just co-workers?
Did the character of the workplace change after complainant joined the workplace? If so, how? What was complainant’s behavior? How did the accused and other co-workers or supervisors respond to complainant’s behavior?
Was the complaint of verbal or physical behavior directed at persons other than complainant? If so, who were they? What conduct was directed towards them, when, how frequently, who was present, where did it occur and who witnessed it? How did these persons react to the physical or verbal conduct?
Did the alleged harasser single out the charging party? If so, how, when, where, and why?
Did others join in perpetrating the harassment? If so, who? What was done; when, where, who witnessed the conduct, and were others harassed too?
If the complaint of conduct was verbal, what were the remarks? Were they hostile and derogatory? What was the frequency and context of the comments? Were the parties in or out of the workplace when the comments were made?
Was the alleged harassment observed by supervisors, managers, or other co-workers? If so, by whom, when, where, and what was observed?
Was the alleged harassment observed by former employees or others outside the workplace? If so, by whom, when, where, and what was seen?
Was the harassment quid pro quo?
In order to properly ascertain the employer’s liability for sexual harassment, it is important to distinguish between hostile environment cases and those involving quid pro quo harassment. An employer will always be held responsible for acts of quid pro quo harassment since this conduct occurs in situations in which a supervisor is exercising authority over terms and conditions of employment granted to him/her by his/her employer. Liability will be assessed for quid pro quo sexual harassment unless the employer took definite and prompt action to stop the harassment.
In hostile environment cases, on the other hand, employers are liable where they knew or should have known of the alleged misconduct.
To further ferret out any quid pro quo harassment and the employer’s response to it, include questions such as the following:
What sexual conduct is the supervisor accused of? When, where, how often did it occur, and who observed?
Was the supervisor asked by the complainant to stop? If so, when, where, how often, and who observed?
If a complaint of the alleged harassment by the supervisor was made to another supervisor or managerial employee, what acts, if any, did he or she take to stop the on-going harassment?
If no complaint was made, did the complainant’s behavior change in any way that would have put management on notice that he/she was being sexually harassed?
If no complaint was made, did the complainant’s co-workers engage in any conduct that would have put management on notice that he/she was being sexually harassed?
How was the complainant’s employment affected by the alleged supervisor’s harassment? Was he/she denied a salary increase, a promotion, a job transfer, etc.? If so, when?
Was the complainant treated differently from similarly situated employees in regard to the denied salary increase, promotion, job transfer, etc.? If so, who was treated differently by this same supervisor?
Were the supervisor’s sexual attentions to other employees different from those directed to the complainant? If so, how? Who witnessed these differences?
Was anything done by management to stop the supervisor’s misconduct? If so, what, when, and was this communicated to the victim?
Did the alleged misconduct occur on or off the employee’s premises? Were there any witnesses? If so, who and what was observed?
Date Adopted: March 3, 2008
State and federal law prohibit harassment on the basis of an individual’s actual or perceived protected status, as identified in Board policy 5:010, Equal Employment Opportunity and Minority Requirement.
Pre-Investigation Considerations
Can the investigation be handled internally or should an external investigator be hired?
Ensure that the internal investigator is qualified to conduct the investigation and the investigation can be done correctly.
The following issues should be addressed if the investigation will be handled by the District:
1. Discuss confidentiality with the complainant. Consider and explain how requirements as an employer in the public sector (subject to open records requests and other transparency laws) may impact the investigation practices and confidentiality protocols.
2. Consider whether to take immediate measures for the protection of the complainant or the alleged victim. Separating the complainant from the accused may be necessary to guard against continued harassment or potential retaliation.
3. Create an investigation plan. The plan should include a scope and objectives that clearly
identify the issue(s) and policy violation(s) alleged to have occurred.
4. Establish methods to use in the investigation e.g., witness list, sources of evidence, interview questions, a process for documentation of interview notes, etc. and create a timeline for the investigation.
Investigation Considerations and Questions
The person charged with conducting the internal harassment investigation must ascertain (1) if the alleged conduct occurred; (2) if the conduct was unwelcome; (3) if the harassing conduct was based on any protected status of the complainant; and (4) whether the harassment created a hostile environment in that it had the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive work environment. The questions that follow are designed to help the investigator uncover this evidence. The questions below serve as a general sample; they are not all-inclusive, and the exact questions must be designed for the specific allegations in each case.
Did the alleged conduct occur?
Investigators should consider a number of factors in evaluating whether the complained of conduct occurred, such as:
1. The level of detail provided by the complainant/witness. In certain cases, a witness’s ability to recall information may be impacted by past trauma. Consider the use of a trauma-informed approach in these circumstances.
2. The consistency within and between a witness’s statement(s).
3. The consistency between the witness’s statements and those of other witnesses.
4. Corroborating witnesses and other evidence.
5. Body language/eye contact of the witness. In certain cases, the manner of a complainant’s body language/eye contact during an interview may be attributable to the complainant’s discomfort, rather than a lack of truthfulness.
6. The existence of a pattern of similar past behavior/harassment complaints involving the alleged harasser.
7. Whether the witness has reason to be untruthful, such as a financial, social, reputational, or other personal stake in the outcome.
8. Any corroborating documentation of the alleged conduct.
Is the conduct complained of unwelcome?
Unwelcome conduct is that verbal or physical conduct which the employee did not solicit or incite and that which the employee regarded as undesirable or offensive. The Equal Employment Opportunity Commission (EEOC) evaluates the issue of whether conduct was welcome on a case-by-case basis, considering the totality of the circumstances. The wise investigator will do the same.
Below are sample questions that can be used to formulate actual questions for this part of the investigation.
Who is the alleged sexual harasser? What is the alleged harasser’s name? Is the alleged harasser a co-worker or a supervisor?
Is the conduct complained of physical, verbal, and/or committed using an electronic device, such as, through email, text message, or a social media platform? Obtain relevant details for each incident (the Five W’s: Who, What, Where, When, and Why).
If physical, describe with specificity the nature of the physical conduct. Inquire into all locations on the complainant’s body that were touched and ask when, how often, how the complainant was approached, who witnessed the physical conduct, and where was the complainant when the conduct took place? Did the physical conduct involve an injury to or destruction of the complainant’s possession(s) and, if so, what was the property, what was the nature of the injury, when did it happen, and where is the property now?
If the unwelcome conduct was verbal, what was stated, when, how often, where were the parties when the statements were made, and who witnessed the statements being made?
If the conduct was committed using an electronic device, e.g., through email, text message, or social media platform, what was stated, where, when, how often, who saw it? Does the complainant still have access to the emails or messages, or for the investigator’s review?
Did the complainant or any of the witnesses retain any evidence of the offensive conduct such
as a picture, email message, text message, or video or audio recording?
Was a complaint or protest made to anyone employed by the District or to anyone else? If so,
to whom did the complainant complain, when was the complaint made, what was stated therein,
and were there any witnesses to this or these complaints?
What was the complainant’s response to the conduct? Did the complainant tell the alleged
harasser to stop? Did the complainant complain to others about the alleged harasser’s behavior?
Did the complainant ask co-workers, supervisors or managers to make the harassment stop? If
so, obtain all relevant details (the Five W’s).
Did the complainant engage in any conduct with the alleged harasser that could have
encouraged the alleged harasser’s behavior? If so, what was the conduct, when and where did
it occur, how often and who witnessed it?
Did the complainant make the alleged harasser aware at the point when the conduct became
unwelcome? If so, when, how was this done, what was communicated to the alleged harasser,
and were there any witnesses?
Did the complainant complain about the harassment to the alleged harasser, to the
complainant’s or alleged harasser’s supervisors, other managers or others? If so, when were
the complaints made, what was said, who was present, and what was the response to each
complaint?
If no prior complaints about the alleged harassment were made, why not?
What other actions, if any, did the complainant take to indicate to the alleged harasser that the
alleged harasser’s conduct was unwelcome?
If they lack knowledge about the harassment, did co-workers, supervisors or managers notice
any changes in complainant’s behavior at work or in the alleged harasser’s treatment of the
complainant?
Has the alleged harasser been accused of harassment by other employees? If so, when, and
were the allegations investigated? If so, what was the result of the investigation, and what was
management’s response, i.e., what remedy was imposed?
Did the work environment become hostile?
To ascertain whether unwelcome conduct creates an unlawful hostile environment, the major inquiry is whether the conduct had the purpose or effect of unreasonably interfering with an individual’s performance or creates an intimidating, hostile, or offensive working environment. In the sexual harassment context, trivial or annoying conduct such as sexual flirtation or innuendo or vulgar language would probably not establish a hostile environment, but in certain circumstances the conduct when viewed in the aggregate can establish a hostile environment. The challenged conduct must substantially affect the work environment of a reasonable person for a violation to be found.
Consider the following additional questions for this part of the inquiry:
What effect, if any, did the alleged harassment have upon the complainant’s ability to perform complainant’s job?
What effect, if any, did the alleged harassment have upon the complainant’s mental or physical health or well-being? Was medical treatment/therapy sought?
Even if the alleged harassment had little, or no effect on the complainant’s work performance
or well-being, is there evidence, e.g., verbal or written comments, that the alleged harasser
intended the conduct to have that effect?
Additional question for sexual harassment complaints: What was the sexual character of the work environment before the complainant entered the environment? Were sexual comments and actions common? If so, what types, when did they occur? Who was involved? Supervisors? Co-workers?
Did the character of the workplace change after complainant joined the workplace? If so, how? What was complainant’s behavior? How did the accused and other co-workers or supervisors respond to complainant’s behavior?
Was the complaint of verbal or physical behavior directed at persons other than complainant? If so, who were they? What conduct was directed towards them, when, how frequently, who was present, where did it occur and who witnessed it? How did these persons react to the physical or verbal conduct?
Did the alleged harasser single out the complainant? If so, how, when, where, and why?
Did others join in perpetrating the harassment? If so, who? What was done; when, where, who witnessed the conduct, and were others harassed too?
If the complained of conduct was verbal, what were the remarks? Were they hostile and derogatory? What was the frequency and context of the comments? Were the parties in or out of the workplace when the comments were made?
Was the alleged harassment observed by supervisors, managers, or other co-workers? If so, by whom, when, where, and what was observed?
Was the alleged harassment observed by former employees or others outside the workplace? If so, by whom, when, where, and what was seen?
Was the harassment committed by a supervisor?
The employer will be held responsible for acts of harassment committed by the employee’s supervisor, meaning someone who was authorized by the employer to have authority over the complainant’s terms and conditions of employment. To investigate harassment committed by the complainant’s supervisor, include questions such as the following:
1. What conduct is the supervisor accused of? When, where, how often did it occur, and who observed?
2. Was the supervisor authorized to grant or deny tangible job benefits to the complainant? If so, what was the scope of that authority and what documents evidence it? If not, were the supervisor’s recommendations concerning the complainant’s terms and conditions of employment typically or routinely followed?
Was the harassment quid pro quo (do this for that)?
An employer will be held responsible for acts of quid pro quo sexual harassment, meaning that tangible job benefits were either (1) conditioned on submitting to sexual favors, or (2) denied because of the complainant’s rejection of a sexual advance or request for sexual favors. Quid pro quo-type harassment can also occur in other contexts, such as religious discrimination, for example, if a person is required to abandon or alter his or her religious practice as a condition of employment.
1. How was the complainant’s employment affected by the alleged harassment? Was the
complainant denied a salary increase, a promotion, a job transfer, etc.? If so, when?
2. Was the complainant treated differently from similarly situated employees in regard to the
denied salary increase, promotion, job transfer, etc.? If so, who was treated differently by this
same supervisor?
3. What other management employees were involved in decisions to grant or deny the tangible
job benefit(s) to the complainant? Did they have knowledge of the sexual conduct?
After reviewing your notes and asking any final clarifying questions:
1. Ask if there is anything else that you should know.
2. Ask if there is anyone else you should speak to.
3. Remind the witness to contact you if they recall anything additional, witness anything concerning, or see any evidence of retaliation.
Investigation Report Considerations
Once the investigation is complete, evaluate all the information, prepare an investigation report outlining findings, make a formal determination of whether the accused violated any policies, and provide recommendations for corrective actions. Note the limitations on confidentiality of investigation reports and consider the potential that it may have to be produced to third parties in certain circumstances.
The investigation report list below serves as a general sample; it is not all-inclusive and the exact contents of the report must be designed for the specific allegations in each case. The investigative report should include:
1. Explanation of why the investigation was initiated, including dates and any relevant background.
2. All parties involved in the investigation: names, titles, and their role (complainant, witness, etc.).
3. Factual and credibility findings, including sources referenced (witness statements, documents, photographs, etc.).
4. District policies or procedures and their applicability to the investigation.
5. Specific conclusions (with evidence to support).
6. Names and titles of those responsible for making the final determination.
7. Issues that could not be resolved and reasons why.
8. Recommended actions and follow-up
Date Adopted: March 3, 2008
State and federal law prohibit harassment on the basis of an individual’s actual or perceived protected status, as identified in Board policy 5:010, Equal Employment Opportunity and Minority Requirement.
Pre-Investigation Considerations
Can the investigation be handled internally or should an external investigator be hired? Ensure that the internal investigator is qualified to conduct the investigation and the investigation can be done correctly. The following issues should be addressed if the investigation will be handled by the District:
1. Discuss confidentiality with the complainant. Consider and explain how requirements as an employer in the public sector (subject to open records requests and other transparency laws) may impact the investigation practices and confidentiality protocols. 2. Consider whether to take immediate measures for the protection of the complainant or the alleged victim. Separating the complainant from the accused may be necessary to guard against continued harassment or potential retaliation. 3. Create an investigation plan. The plan should include a scope and objectives that clearly identify the issue(s) and policy violation(s) alleged to have occurred. 4. Establish methods to use in the investigation e.g., witness list, sources of evidence, interview questions, a process for documentation of interview notes, etc. and create a timeline for the investigation.
Investigation Considerations and Questions
The person charged with conducting the internal sexual harassment investigation must ascertain (1) if the alleged conduct occurred; (2) if the conduct was unwelcome; (3) if the harassing conduct was based on any protected status of the complainant; and (4) whether the sexual conduct is unwelcome and whetherharassment created a hostile environment in that it affects a termhad the purpose or conditioneffect of employment (29 C.F.R. §1604.11(a)substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive work environment. The questions that follow are designed to help the investigator uncover this evidence. They are not all-inclusive and the exact questions must be designed for the specific allegations in each case.
Is the conduct complained of unwelcome sexual conduct? The questions below serve as a general sample; they are not all-inclusive, and the exact questions must be designed for the specific allegations in each case.
“Unwelcome sexualDid the alleged conduct occur?
Investigators should consider a number of factors in evaluating whether the complained of conduct” occurred, such as:
1. The level of detail provided by the complainant/witness. In certain cases, a witness’s ability to recall information may be impacted by past trauma. Consider the use of a trauma-informed approach in these circumstances. 2. The consistency within and between a witness’s statement(s). 3. The consistency between the witness’s statements and those of other witnesses. 4. Corroborating witnesses and other evidence. 5. Body language/eye contact of the witness. In certain cases, the manner of a complainant’s body language/eye contact during an interview may be attributable to the complainant’s discomfort, rather than a lack of truthfulness. 6. The existence of a pattern of similar past behavior/harassment complaints involving the alleged harasser. 7. Whether the witness has reason to be untruthful, such as a financial, social, reputational, or other personal stake in the outcome. 8. Any corroborating documentation of the alleged conduct.
Is the conduct complained of unwelcome?
Unwelcome conduct is that verbal or physical sexual conduct which the employee did not solicit or incite and that which the employee regarded as undesirable or offensive. It is difficult to discern because the line between welcome and unwelcome sexual conduct is often quite fuzzy. The Equal Employment Opportunity Commission (EEOC) evaluates the issue of welcomeness in sexual harassment caseswhether conduct was welcome on a case-by-case basis. It looks at the record as a whole, considering the totality of the circumstances. The wise investigator will do the same.
Below are sample questions that can be used to formulate actual questions for this part of the investigation. When conducting an investigation a balance must be struck between fact finding and sensitivity. The investigator can neither blame the victim nor base data collection on any sort of pre-conceived notion.
Who is the alleged sexual harasser? What is his/herthe alleged harasser’s name? Is he/shethe alleged harasser a co-worker or a supervisor?
Is the sexual conduct complained of verbal or physical?
If physical, describe with specificity the nature of the physical conduct, including where the complainant was touched, when, how often, how he/she was approached, who witnessed the physical conduct, and where was the complainant when the conduct took place?
Was medical treatment required? If so, when was he/she treated, how often, by whom, where was he/she treated, and what was the diagnosis?
If medical treatment was not required, was a contemporaneous complaint or protest made to anyone employed by the District or to anyone else? If so, to whom did he/she complain, when was the complaint made, what was stated therein and were there any witnesses to this or these complaints?
Is the conduct complained of physical, verbal, and/or committed using an electronic device, such as, through email, text message, or a social media platform? Obtain relevant details for each incident (the Five W’s: Who, What, Where, When, and Why).
If physical, describe with specificity the nature of the physical conduct. Inquire into all locations on the complainant’s body that were touched and ask when, how often, how the complainant was approached, who witnessed the physical conduct, and where was the complainant when the conduct took place? Did the physical conduct involve an injury to or destruction of the complainant’s possession(s) and, if so, what was the property, what was the nature of the injury, when did it happen, and where is the property now?
If the unwelcome conduct was verbal, what was stated, when, how often, where were the parties when the statements were made, and who witnessed the statements being made?
Was medical treatment required to address the impact of the verbal conduct? If so, when was he/she treated, how often, by whom, where was he/she treated, and what was the diagnosis?
If medical treatment was not required to address the impact of the verbal conduct, was a contemporaneous complaint or protest made to anyone employed by the employer or to anyone else? If so, to whom did he/she complain, when was the complaint made, what was stated therein and were there any witnesses to this or these complaints?
What was the complainant’s response to the physical or verbal conduct? Did he/she tell him/her to stop? Did he/she complain to others about his/her behavior? Did he/she ask co-workers, supervisors or managers to make the harassment stop? If so, obtain all relevant details.
If the conduct was committed using an electronic device, e.g., through email, text message, or social media platform, what was stated, where, when, how often, who saw it? Does the complainant still have access to the emails or messages, or for the investigator’s review?
Did the complainant or any of the witnesses retain any evidence of the offensive conduct such as a picture, email message, text message, or video or audio recording?
Was a complaint or protest made to anyone employed by the District or to anyone else? If so, to whom did the complainant complain, when was the complaint made, what was stated therein, and were there any witnesses to this or these complaints?
What was the complainant’s response to the conduct? Did the complainant tell the alleged harasser to stop? Did the complainant complain to others about the alleged harasser’s behavior? Did the complainant ask co-workers, supervisors or managers to make the harassment stop? If so, obtain all relevant details (the Five W’s).
Did the complainant engage in any conduct with the alleged harasser that could have encouraged his/herthe alleged harasser’s behavior? If so, what was the conduct, when and where did it occur, how often and who witnessed it?
Did the complainant and the alleged harasser have a prior consensual relationship? If so, how long did it last and when did that relationship end?
Did the complainant make the alleged harasser aware at the point when the sexual advancesconduct became unwelcome? If so, when, how was this done, what was communicated to the alleged harasser, and were there any witnesses?
Did the complainant complain about the harassment to the alleged harasser, his/herto the complainant’s or alleged harasser’s supervisors, other managers or others? If so, when were the complaints made, what was said, who was present, and what was the response to each complaint?
If no prior complaints about the alleged harassment were made, why not?
What other actions, if any, did the complainant take to indicate to the alleged harasser that his/herthe alleged harasser’s conduct was unwelcome?
Did the complainant engage in any conduct which elicited the unwelcome conduct of the alleged harasser? For example, how did he/she demean him or herself in the workplace, how did he/she dress, did he/she use sexual and provocative language, did he/she engage in sexually provocative conduct, and was this conduct directed towards the alleged harasser?
If they lack knowledge about the harassment, did co-workers, supervisors or managers notice any changes in charging partycomplainant’s behavior at work or in the alleged harasser’s treatment of the charging party complainant?
Has the alleged harasser been accused of sexual harassment by other employees? If so, when, and were the allegations investigated? If so, what was the result of the investigation, and what was management’s response, i.e., what remedy was imposed?
Did the work environment become hostile?
To ascertain whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII,creates an unlawful hostile environment, the major inquiry is whether the conduct “had the purpose or effect of unreasonably interferesinterfering with an individual’s performance” or creates “an intimidating, hostile, or offensive working environment.” (29 C.F.R. §1601.11(a)3). Thus In the sexual harassment context, trivial or annoying conduct such as sexual flirtation or innuendo or vulgar language would probably not establish a hostile environment, but in certain circumstances the conduct when viewed in the aggregate can establish a hostile environment. The challenged conduct must substantially affect the work environment of a reasonable person for a violation to be found.
Consider the following additional questions for this part of the inquiry:
What effect, if any, did the alleged harassment have upon the complainant’s ability to perform his/hercomplainant’s job?
What effect, if any, did the alleged harassment have upon the complainant’s mental or physical health or well-being? Was medical treatment/therapy sought?
Even if the alleged harassment had little, or no effect on the complainant’s work performance or well-being, is there evidence, e.g., verbal or written comments, that the alleged harasser intended the conduct to have that effect?
Additional question for sexual harassment complaints: What was the sexual character of the work environment before the complainant entered the environment? Were sexual comments and actions common? If so, what types, when did they occur? Who was involved? Were supervisors involved or just coSupervisors? Co-workers?
Did the character of the workplace change after complainant joined the workplace? If so, how? What was complainant’s behavior? How did the accused and other co-workers or supervisors respond to complainant’s behavior?
Was the complaint of verbal or physical behavior directed at persons other than complainant? If so, who were they? What conduct was directed towards them, when, how frequently, who was present, where did it occur and who witnessed it? How did these persons react to the physical or verbal conduct?
Did the alleged harasser single out the charging partycomplainant? If so, how, when, where, and why?
Did others join in perpetrating the harassment? If so, who? What was done; when, where, who witnessed the conduct, and were others harassed too?
If the complaintcomplained of conduct was verbal, what were the remarks? Were they hostile and derogatory? What was the frequency and context of the comments? Were the parties in or out of the workplace when the comments were made?
Was the alleged harassment observed by supervisors, managers, or other co-workers? If so, by whom, when, where, and what was observed?
Was the alleged harassment observed by former employees or others outside the workplace? If so, by whom, when, where, and what was seen?
Was the harassment quid pro quocommitted by a supervisor?
In order to properly ascertainThe employer will be held responsible for acts of harassment committed by the employee’s supervisor, meaning someone who was authorized by the employer to have authority over the complainant’s liability for sexualterms and conditions of employment. To investigate harassment committed by the complainant’s supervisor, include questions such as the following:
1. What conduct is the supervisor accused of? When, where, how often did it is importantoccur, and who observed? 2. Was the supervisor authorized to distinguish between hostile environment casesgrant or deny tangible job benefits to the complainant? If so, what was the scope of that authority and those involving quid pro quo harassment. what documents evidence it? If not, were the supervisor’s recommendations concerning the complainant’s terms and conditions of employment typically or routinely followed?
Was the harassment quid pro quo (do this for that)?
An employer will always be held responsible for acts of quid pro quo sexual harassment since this conduct occurs in situations in which a supervisor is exercising authority over terms and conditions of employment granted, meaning that tangible job benefits were either (1) conditioned on submitting to him/her by his/her employer. Liability will be assessed for quid pro quo sexual harassment unless the employer took definite and prompt action to stop the harassment.
In hostile environment casesfavors, on the other hand, employers are liable where they knew or should have known(2) denied because of the alleged misconductcomplainant’s rejection of a sexual advance or request for sexual favors. Quid pro quo-type harassment can also occur in other contexts, such as religious discrimination, for example, if a person is required to abandon or alter his or her religious practice as a condition of employment.
To further ferret out1. How was the complainant’s employment affected by the alleged harassment? Was the complainant denied a salary increase, a promotion, a job transfer, etc.? If so, when? 2. Was the complainant treated differently from similarly situated employees in regard to the denied salary increase, promotion, job transfer, etc.? If so, who was treated differently by this same supervisor? 3. What other management employees were involved in decisions to grant or deny the tangible job benefit(s) to the complainant? Did they have knowledge of the sexual conduct?
After reviewing your notes and asking any quid pro quo harassmentfinal clarifying questions:
1. Ask if there is anything else that you should know. 2. Ask if there is anyone else you should speak to. 3. Remind the witness to contact you if they recall anything additional, witness anything concerning, or see any evidence of retaliation.
Investigation Report Considerations
Once the investigation is complete, evaluate all the information, prepare an investigation report outlining findings, make a formal determination of whether the accused violated any policies, and provide recommendations for corrective actions. Note the limitations on confidentiality of investigation reports and consider the potential that it may have to be produced to third parties in certain circumstances. The investigation report list below serves as a general sample; it is not all-inclusive and the employer’s responseexact contents of the report must be designed for the specific allegations in each case. The investigative report should include:
1. Explanation of why the investigation was initiated, including dates and any relevant background. 2. All parties involved in the investigation: names, titles, and their role (complainant, witness, etc.). 3. Factual and credibility findings, including sources referenced (witness statements, documents, photographs, etc.). 4. District policies or procedures and their applicability to it, include questions such asthe investigation. 5. Specific conclusions (with evidence to support). 6. Names and titles of those responsible for making the following:final determination. 7. Issues that could not be resolved and reasons why. 8. Recommended actions and follow-up
What sexual conduct is the supervisor accused of? When, where, how often did it occur, and who observed?
Was the supervisor asked by the complainant to stop? If so, when, where, how often, and who observed?
If a complaint of the alleged harassment by the supervisor was made to another supervisor or managerial employee, what acts, if any, did he or she take to stop the on-going harassment?
If no complaint was made, did the complainant’s behavior change in any way that would have put management on notice that he/she was being sexually harassed?
If no complaint was made, did the complainant’s co-workers engage in any conduct that would have put management on notice that he/she was being sexually harassed?
How was the complainant’s employment affected by the alleged supervisor’s harassment? Was he/she denied a salary increase, a promotion, a job transfer, etc.? If so, when?
Was the complainant treated differently from similarly situated employees in regard to the denied salary increase, promotion, job transfer, etc.? If so, who was treated differently by this same supervisor?
Were the supervisor’s sexual attentions to other employees different from those directed to the complainant? If so, how? Who witnessed these differences?
Was anything done by management to stop the supervisor’s misconduct? If so, what, when, and was this communicated to the victim?
Did the alleged misconduct occur on or off the employee’s premises? Were there any witnesses? If so, who and what was observed?
