Finding the Facts - Disciplinary and Harassment Investigation

unfounded complaints by the complainant may also reflect on the reasonableness of the complainant’s perception of the alleged perpetrator’s conduct.

C. D OCUMENTARY AND P HYSICAL E VIDENCE Aside from background documents there may be other documentary evidence, as well as physical evidence that could be “smoking gun” evidence as to whether or not misconduct occurred. Physical evidence could also be the determining factor in making credibility decisions. For example in an harassment investigation, physical evidence include such items as:  “Love letters,” emails, cards sent to the complainant from the alleged harasser;  “Love letters,” emails, cards sent to the alleged harasser from the complainant;  Time cards to prove when the employees were or were not at work;  Other notes, cards or gifts;  Computer print-outs of pornographic materials;  Hotel receipts signed by the alleged harasser (after he has denied staying at the hotel);  Off-color, sexist cartoons (photocopies and faxes).

Originals and/or copies of all relevant physical evidence should be kept in the binder!

LCW Practice Advisor

D. I NTERVIEWS

1. G OALS OF THE I NTERVIEWS

The purpose of interviewing the complainant, alleged harasser and witnesses is to gather basic and relevant facts in order to determine what occurred. Investigations should not be interrogations. Neither the complainant nor the accused party should feel they are being cross- examined. Studies have shown that open-ended questions are better at eliciting information while not causing people to feel attacked. The DFEH’s Workplace Harassment Guide also instructs investigators to ask open ended questions on all areas relevant to the complaint to get complete information from the parties and witnesses. 81 After asking open-ended questions, investigators should then follow-up as appropriate to get the necessary facts to make supportable findings.

The investigator should focus on the facts to find out:

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What happened?

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Who was involved?

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Who were the witnesses?

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How did it happen?

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When did it happen?

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 35