Finding the Facts - Disciplinary and Harassment Investigation

If the alleged perpetrator is the complainant’s supervisor or a co-worker with whom the complainant works, the complainant should be asked if he/she believes he/she can still work with that person. If he/she does not believe he/she can, the investigator should ask if there is anything he/she would like the district to do to address the situation. e. Questions NOT to Ask There are some questions the investigator should not ask. An investigator should not ask questions that are wholly irrelevant to the allegations being investigated. Nor should an investigator attempt to elicit information protected by a person’s right to privacy unless it is clearly necessary to a full and thorough investigation. For example, in an investigation of alleged harassment, a pre-existing relationship between the complainant and the alleged harasser may be relevant to whether some of the conduct was welcome, but the complainant’s sexual relationships with other people would not be. f. Questions Re: Complainant’s Conduct A complainant’s conduct might be relevant for resolving issues of welcomeness and whether a hostile work environment was present. For example, the complainant’s frequent use of obscene or sexually-oriented speech may indicate that such conduct by others did not create a subjectively hostile environment for the complainant. 83 However, while these factors might be relevant, they are not conclusive. g. Questions Re: Alleged Harasser’s Conduct The investigator may want to inquire into the alleged harasser’s potential harassment of other employees, besides the complainant. This type of information may be relevant to the alleged harasser’s motive or intent in his/her conduct toward the complainant. Specifically, it may be used to show that the employer or alleged harasser had a general attitude of disrespect and hostility toward members of the complainant’s protected class (i.e., women) and therefore, had a motive to harass the complainant. 84 Evidence that the alleged harasser harassed people both within and outside of the complainant’s protected class should be explored but is most likely irrelevant. For example, if a supervisor was abusive to both men and women, he nevertheless unlawfully sexually harassed his female subordinates because his abuse of them was centered on the fact that they were women. He referred to men simply as “assholes,” but he called women “dumb broads.” While he could have simply called the women “dumb,” the fact that he instead called them dumb broads showed that his abuse focused on the gender of the female employees. 85 Even if, however, the abusive supervisor abused male and female employees equally, he could still have sexually harassed the female employees if a reasonable woman would have found the conduct offensive and hostile. Moreover, the supervisor’s abusive behavior to both men and women could result in viable claims of sexual harassment from both male and female employees. 86

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 39