OFFICE OF THE GENERAL COUNSEL
GUIDELINES FOR INVESTIGATING SEXUAL HARASSMENT COMPLAINTS

 

I. Introduction

There are no uniform rules for investigating alleged sexual harassment. A complaint may be resolved informally after speaking with the complaining party and the alleged harasser. It may be necessary to interview others and/or to review documentary material. In all cases, sexual harassment complaints must be addressed. Upon receiving a complaint of sexual harassment, the responsible administrator should confer with the Office of the General Counsel and academic or human resources administrators. Where a matter entails alleged ongoing ill treatment, the need for prompt action is indicated. In such an instance, the administrator should immediately contact the Office of the General Counsel. In all cases, respect for the affected individuals' privacy and reputational interests calls for discretion.

These investigation guidelines are intended as helpful suggestions.* Complaints of sexual harassment need not be processed according to these guidelines, but the responsible administrator under the University's Policy on Sexual Harassment must process every sexual harassment complaint that he or she receives. The Office of the General Counsel welcomes any questions an administrator has regarding these guidelines or any complaint of sexual harassment that the administrator receives.


* These guidelines are not intended to be used where a student is the alleged harasser, as proceedings under those complaints are conducted under the document called Academic Freedom for Students at Michigan State University.

 

II. Informal Resolution

Individuals who make complaints of sexual harassment sometimes request that the complaint be resolved informally. It may be appropriate for the responsible administrator to honor this request, especially if the administrator determines that the complaint involves unprofessional or other objectionable behavior, but not sexual harassment. Administrators should be cautious about attempting to resolve complaints informally if the complainant has not asked for such a resolution; the suggestion of an informal resolution may be perceived by the complainant as pressure to drop or not pursue a sexual harassment complaint. There should be a brief record (e.g., a memo to file) of an informal resolution of a complaint.

 

III. Investigations

A.) Investigative Overview

1.) Under the University's Policy on Sexual Harassment, the unit administrator of the alleged harasser (or, if the alleged harasser is the unit administrator, the unit administrator's superior) has responsibility for processing complaints of sexual harassment. This individual will generally conduct the investigation of the sexual harassment complaint.

If you, as unit administrator, have any doubts about your ability to conduct an impartial investigation of a sexual harassment complaint, please contact the Office of the General Counsel and personnel administrators in Human Resources or the Office of the Provost, as appropriate, about having another person act in your stead.

2.) Administrative actions should be undertaken deliberately, but promptly.

a.) Review applicable University policies and procedures, especially the Policy on Sexual Harassment, and create a confidential investigation file.

b.) Note, preliminarily, the apparent significant factual issues; prepare a list of likely witnesses and sources of pertinent information, e.g., a list of records or documents that may shed light on the underlying situation.

c.) Confer with an Office of the General Counsel attorney, and with personnel administrators from Human Resources or the Office of the Provost. The Women's Resource Center provides counseling services to victims and professional expertise to administrators.

d.) Interview the parties and witnesses, and examine documentary evidence.

e.) Analyze all information and prepare a report that summarizes the evidence, states your factual findings and the rationale for your findings, and states any proposed disciplinary or other personnel action to be taken.

B.) Anonymous or Third Party Complaints

If you receive an anonymous complaint, encourage the complainant to give his/her name. If you receive a complaint from a person who is not the alleged victim of the alleged harassment, encourage the complainant to get the alleged victim to come forward. It is difficult to investigate a complaint, draw conclusions about it, or otherwise be helpful if you do not know who the complainant is or if the alleged victim will not confirm the charge. Depending on the evidence provided and the severity of the alleged harassment, however, you may have to investigate an anonymous or third party complaint. In that event, contact the Office of the General Counsel and personnel administrators in Human Resources or the Office of the Provost, as appropriate, for assistance.

C.) Fact Gathering

1.) Interview the complainant. Determine whether the complainant is comfortable communicating with you. If necessary, have a person who is of the same gender as the complainant either handle the interview or join you for the discussion. Listen attentively. Encourage the complainant to say just what happened, then ask questions to clarify or elicit additional information. Be supportive, but do not make judgmental statements. '

- Ask what happened. Due to feelings of embarrassment or shame, a complainant may be reticent or imprecise in expression. You should seek specific information; use who, what, where, when, and how type questions.

- Ask how the victim was affected by what happened and what redress s/he wants. If the alleged harassment is severe, such may indicate the need for immediate action.

- Ask for the names of persons with knowledge of matters related to the complaint, and of persons with whom complainant has spoken about the matter.

- Ask for copies of any documents which may pertain to the reported event(s).

- Tell the complainant that you will investigate the matter. Explain other avenues, such as the ADJB procedure, that may be available, and explain to the complainant that you will respect his/her privacy. Do not promise absolute confidentiality. (You may be legally required to disclose information which the complainant would prefer that you not disclose.)

- Take notes. Promptly prepare a memo summarizing the interview and have the complainant verify its accuracy. If the complainant gives you a written statement, your interview notes will supplement the statement. Ask that the complainant review your notes and specify, in writing, needed corrections as well as any omitted information.

-Be careful about what you write down, especially your personal observations. Your notes and memos could be subpoenaed in a related legal proceeding.

2.) Identify the actual issues and prepare an investigative plan.

- Determine the identity of other witnesses and the order in which you propose to interview them.

- Determine what documents., if any, should be obtained.

- Notify the appropriate administrative superior of the matter, as appropriate.

- Set a schedule that provides for a prompt, but thorough, investigation.

3.) Interview the alleged harasser.

- Advise that an allegation of sexual harassment has come to your attention.

- Tell the alleged harasser that you are responsible for investigating the matter.

- State the allegations without making judgmental comments.

- It will almost always be necessary to identify the complainant to the alleged harasser at this time. If the complainant has requested confidentiality and you believe that you can honor that request and still conduct a fair and thorough investigation, contact the Office of the General Counsel before interviewing the alleged harasser.

- Ask the alleged harasser for his/her views regarding the complaint. Ask who, what, where, and how questions to elicit specific details relevant to the events alleged by the complainant. (Let the alleged harasser tell the facts in his or her own words.)

- Obtain names of witnesses and specification of documents that the alleged harasser thinks may be helpful to your understanding.

- Advise the alleged harasser that the University prohibits retaliation of any kind. Tell the respondent to avoid contact with the complainant, and that in all events he or she may not communicate with the complainant about the subject of the complaint while the matter is under review.

- Take notes. Promptly prepare a memo summarizing the interview. Have the alleged harasser verify its accuracy, in the same manner as with the complainant.

4.) Interview other witnesses.

- Advise the witness that you are conducting a confidential investigation into an allegation of sexual harassment and that you understand that he or she may have some information. (If the witness can identify the complaining party and alleged harasser, you will be able to avoid having to identify the parties.)

- Find out what the witness knows. Elicit details and seek relevant documents.

- Take notes. Promptly prepare a memo summarizing the interview and have the witness verify its accuracy. Distinguish between what the person knows as a matter of firsthand knowledge and what he or she understands from other sources.

5.) Review employee or student records.

- Has the complainant made similar complaints before? Have similar complaints been made against the alleged harasser by anyone else?

6.) Maintain the confidentiality of the investigation.

- Do not discuss the complaint or the investigation with anyone who does not need to know about it for you to carry out the investigation. Advise the complainant, the alleged harasser and the witnesses that keeping the matter confidential will minimize the possibility of legal problems.

- If the investigation lasts longer than you have told the complainant and alleged harasser to expect, periodically advise them of its status and when you expect it to be finished. Do not tell them what the investigation is revealing or your thoughts about it, however. Remind them of the importance of confidentiality.

D.) Evaluating the Situation

1.) Review and analyze the evidence.

- Consider the existence or lack of corroborating evidence, as well as any other indicators that may be persuasive to you in determining the factual truth. In situations involving alleged improper behavior in personal interactions it commonly occurs that there are no disinterested witnesses. In such a case, consider whether the complainant told anyone else of the harassment and/or whether anyone observed a change in behavior of either or both of the parties. Sometimes there is a written record, such as a diary or correspondence.

- Assessing the credibility of the parties and witnesses calls for observing attitudes and behavior. A person's emotional affect can be telling. The timing of the complaint in relation to the occurrence of the behavior may allow for an inference about truthfulness. The reports of other persons in the work unit about the complainant's and the alleged harasser's behavior may be highly informative.

2.) Determine whether sexual harassment has occurred

- Was the subject conduct sexual in nature? Was it unwanted or unwelcome? Was it offensive from the perspective of a reasonable person? (A complainant need not expressly reject an advance in order for the advance to be regarded as unwelcome.)

- Decide whether it is more likely than not that sexual harassment occurred or that it is not possible to decide the matter. The latter conclusion is appropriate when the evidence that sexual harassment occurred and did not occur is of equal weight and credibility.

3.) Determine what action should be taken to resolve the complaint and ensure that any harassment will end and not reoccur. Both remedial action and disciplinary action may be necessary. Decisions regarding discipline should be made in consultation with Human Resources or Academic Human Resources, and the Office of the General Counsel, as appropriate.

- Depending upon the nature and seriousness of the allegations, and the results of the investigation, consider written reprimands, required counseling, demotion to the non-supervisory duties, reassignment, suspension, discharge, or other options.

- Transfers to other positions may be considered. Whether the complainant or harasser is to be transferred requires close attention. Transferring the complainant may be construed as unlawful retaliation. Take into consideration the complainant's desires.

E.) Preparation of a Report Disposing of Factual Issues and Stating Personnel Actions

- Prepare a written report, including a chronological rendition of the factual findings, the action to be taken, and the rationale for any actions or proposed actions. The report should contain the following elements:

- a description of the complaint and the circumstances of your learning about it, to include when you first learned of it;

- a summary of the interviews of all parties and witnesses and any documents reviewed;

- a conclusion as to whether sexual harassment occurred and a statement of the supporting rationale; and, a statement of corrective actions or proposed actions to be taken, including disciplinary action.

- The Office of the General Counsel should review the report before you finalize it.

F.) Meet Separately with the Complainant and Alleged Harasser to Discuss the Report, and Provide a Copy of it to the Appropriate Human Resources Office

1.) Notifying the complainant. The complainant should be told of the investigative findings, whether the allegations have been substantiated, what action, if any, is being taken, and, if apropos, that the complainant should promptly report any further incidents of harassment or possible retaliation.

2.) Notifying the alleged harasser. The alleged harasser should be advised as to the investigative results.

- Where the investigation reveals no harassment, such should be directly stated. Where it is determined that sexual harassment did occur, the harasser should be provided a copy of the report and an opportunity to ask any questions that he or she may have. Where the allegations are serious, but it is impossible to determine whether sexual harassment occurred, the alleged harasser should be sent a memo stating that the evidence is inconclusive, but that serious allegations have been made. The memo should iterate the substance of University policy on sexual harassment and advise that such conduct is not tolerated by the University.

G.) Records

1.) Confidentiality of administrative file. The administrator's investigative papers should be kept in a confidential, locked file, not in the affected employee's personnel file.

2.) Disciplinary records. Papers related to disciplinary actions should be placed in the affected employee's personnel file in the same manner as any other disciplinary documents.

H.) Special Situations

Immediately contact the Office of the General Counsel and/or personnel administrators from Human Resources or the Office of the Provost, as appropriate, for assistance if:

1.) you believe the complainant has knowingly filed a false complaint or that the complainant, the alleged harasser, or a witness has knowingly misled you, provided false information or otherwise impeded your investigation;

2.) the alleged harasser attempts to retaliate against the complainant or any witness;

3.) the confidentiality of the investigation is breached;

4.) the complainant says that she or he only wants to let you know about the harassment, but does not want you to do anything about it (a request that you will probably not be able to honor);

5.) there is a proposed change during the investigation in the terms and conditions of the complainant's or alleged harasser's employment or status in a course, program, or activity, including any temporary change;

6.) the complainant or the alleged harasser wants another person, especially a lawyer, present at your interview; or

7.) there have been other sexual harassment complaints against the alleged harasser.


May, 1999