We frequently get questions about how to conduct a proper investigation of a claim of workplace discrimination or harassment. Of course, we have suggestions (basing questioning around the 5Ws – who, what, when, where, and witnesses; getting the complaint’s story committed to writing; etc.). But sometimes lessons can best be learned from the carnage of an investigation gone awry. And things went horribly wrong in a case coming out of Philadelphia. The investigation was truly a house of horrors!
Here is the scary campfire story:
Two police officers working for the City of Philadelphia alleged sexual harassment and sexual assault by their supervisor.
One officer claimed that she was sexually assaulted in the supervisor’s police car. Inspection of the car resulted in a finding of physical evidence that some sexual activity had occurred in the car involving the supervisor. When confronted, the supervisor admitted that he had engaged in sexual activity in the car with a “civilian woman,” but not the complaining police officer. The City took the supervisor’s word for it and never asked for the name of the civilian woman allegedly engaging in amorous activity in the supervisor’s car. The investigator never followed up to ask the “civilian” whether the supervisor’s recounting of his extracurricular activities with her were, in fact, true.
Scary Lesson: Always ask the follow up question! Simply taking the alleged harasser’s story at face value, and not even trying to corroborate it, is not in Chapter 1 of “How to Conduct a Good Workplace Investigation.” Ask the follow-up questions. Try to get corroboration. This is true of all alleged facts uncovered during a workplace investigation, whether asserted by the alleged victim, the alleged harasser or any witnesses.
The second officer claimed that the supervisor engaged in a litany of inappropriate, sexual comments and sexually assaulted her in the supervisor’s office. In response, the City transferred her to a different shift – one that was difficult for her because her mother was unable to provide childcare during the newly assigned shift. The police department captain, who made the decision to transfer the police officer complaining about sexual harassment, admitted to a subordinate that he was transferring her to a different shift because she made the complaint!
Scary Lesson: Don’t transfer the complainant to a different shift or otherwise alter the terms and conditions of their employment in response to a complaint. The alleged victim and alleged harasser should always be separated during the pendency of an investigation but don’t do so by switching shifts or otherwise changing the terms and conditions of the alleged victim’s employment. That is a sure-fire way to invite a claim of unlawful retaliation.
The City finally decided to investigate the claims but did an unsatisfactory job. Multiple people investigated the allegations, so there was no continuity in the investigation. The investigators failed to reach out to anyone outside of the police department to ask questions even though it was apparent that there were multiple witnesses with important information who did not work for the police department. And, finally, the investigators failed to investigate, at all, one of the complaint’s claims for retaliation.
Scary Lesson: Be thorough in your investigation and use only one fact investigator. As discussed above, asking the victim and each witness “who, did what, when did they do it, where did they do it, and are there witnesses” is a good start to ensure that your investigation is thorough. And try to reach out to all witnesses who may have relevant information. Even if those people no longer work for your company and refuse to talk, making the effort to reach out is important.
