An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

 Inconsistent statements – this refers to one individual giving statements that are inconsistent in a way that is not easily explained.  Manner of testimony – such as hesitations of speech and indirect answers (especially when the witness has given direct answers to foundational questions.)  Demeanor – experts caution against using demeanor evidence as most people cannot effectively evaluate truthfulness from an individual’s demeanor. Demeanor can be used as a credibility factor, but investigators should apply it with caution and understand the pitfalls of relying on demeanor when making a finding. To the extent possible, your conclusions should be based on an analysis of the objective evidence. 1965

Also, related prior misconduct if well documented and/or established may negatively impact an alleged wrongdoer’s credibility. The investigator should carefully consider whether the prior misconduct is relevant to the current allegations and credibility of the individual as well as the reliability of this information before deciding whether to consider it in making credibility determinations. LCW Practice Advisor The EEOC “recognizes that sexual conduct may be private and unacknowledged, with no eyewitnesses. Even sexual conduct that occurs openly in the

workplace may appear to be consensual. Therefore, the resolution of a sexual harassment claim often depends on the credibility of the parties.” The EEOC recommends that the “investigator should question the charging party and the alleged harasser in detail . . . . Supervisory and managerial employees, as well as co-workers, should be asked about their knowledge of the alleged harassment.” 1966 An investigator who has interviewed all relevant parties in great detail will be in the best position to judge the credibility of the complainant, alleged, and any witnesses. The EEOC further stated that, “in appropriate cases, the Commission may make a finding of harassment based solely on the credibility of the victim’s allegation. As with any other charge of discrimination, a victim’s account must be sufficiently detailed and internally consistent so as to be plausible, and the lack of corroborative evidence where such evidence logically should exist, would undermine the allegation. By the same token, a general denial by the alleged harasser will carry little weight when it is contradicted by other evidence.” 1967

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 471