as sexual or racial harassment) the employer should make several preliminary
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
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
Concentrate the interviews on the employee’s personal knowledge, instead of
rumor and hearsay.