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as sexual or racial harassment) the employer should make several preliminary

determinations.

First, the employer should decide which individuals should be informed about the

complaint (or the conduct, if no complaint has been made). This group should always

include either in-house or outside legal counsel, because there are many traps for the unwary

in this area. Legal advice is required in order to ensure that the investigation is performed

and documented in a way that protects the employee’s rights while shielding the employer

from unnecessary potential liability.

The second issue generally addressed is who should conduct the investigation (which

is in part dependent on the answer to the question above). Sometimes it is advisable that two

investigators work together, preferably a male and female. Possibilities are a Human

Resources department member, with some seniority, and a senior manager in a department

separate from the alleged harasser, and/or in-house counsel. Note, however, if in-house

counsel is used, special care must be taken to maintain the attorney-client and work product

privilege.

Here are some general guidelines for conducting an effective investigation:

  • Make a detailed list of questions to ask during the interviews, to make sure to

elicit specific, detailed facts and other information. In other words, ask for as much specific

information as possible (e.g., Who? What? Where? When? How? Who else was present?).

Try to avoid leading questions, but rather ask open ended questions that do not suggest an

answer.

  • Concentrate the interviews on the employee’s personal knowledge, instead of

rumor and hearsay.

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