Finding the Facts - Disciplinary and Harassment Investigation

 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. 141 Also, prior acts or discipline can negatively impact an alleged wrongdoer’s credibility. The investigator should carefully consider the relevance and reliability of this information and be mindful of the degree of similarity between the prior and current acts in assessing credibility. Is the evidence of prior acts or discipline well-documented, as in a personnel file, or is the evidence uncorroborated or otherwise not adequately established hearsay? In many cases it is necessary to re-interview the complainant, witnesses, and/or the alleged harasser during the evaluation phase of the investigation to help clarify factual discrepancies, inconsistencies, or responses to information acquired during the interviews.

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.” 142 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 harasser, 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.” 143

LCW Practice Advisor

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