Disclosing Name of Accused During an Investigation
Posted: 10 March 2011 07:34 PM   [ Ignore ]
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Is is ever appropriate to disclose the name of the accused during an investigation of an anonymous complaint of harassment?

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Posted: 11 March 2011 09:27 AM   [ Ignore ]   [ # 1 ]
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Bob - I cannot make specific suggestions without additional information. If, for example, an anonymous complaint was made about an employee, the first step would be to assess the legitimacy of the complaint by its form and detail. The presumption should be that it is legitimate especially if the employee manual’s harassment policy specifically allows for anonymous complaint filing. I think it is risky to ignore unsigned complaints, but I also appreciate the difficulty and complexity of acting on anonymous complaints. Then the company should follow up on an investigation by notifying the accused that a complaint has been filed about his/her behavior. I almost always believe the accused should be informed of the complaint before witnesses are questioned. There may be facts and circumstances from that discussion and the original complaint that will allow you to proceed with an investigation. Meeting with the accused also allows you to remind him/her of the company’s non-retaliation policy.

I see more “anonymous” provisions in workplace violence policies than I do harassment.

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Posted: 11 March 2011 09:29 AM   [ Ignore ]   [ # 2 ]
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For clarification -  If an anonymous complaint is filed against a high level employee with specific examples of alleged harassing behavior, when speaking to direct reports (manager level) of this alleged harasser while conducting an investigation, is it ever appropriate to bring up the alleged harasser’s name. 

This question came up in a discussion recently - I said yes if the allegations are serious.  In my opinion, if there is any truth to the complaint, we have to stop the behavior and without revealing the name, it would be much more difficult to get to the bottom of what is happening - if anything.

Some agreed and others vehemently disagreed stating that the investigator should stay with general questions of ever witnessing inappropriate behavior on the part of anyone in the organization/department. In their opinion, to reveal the name would be planting seeds in the heads of the people we speak to and would amount to a witch hunt.

Your opinions on this board are welcome and valued.

Thanks

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Posted: 11 March 2011 09:43 AM   [ Ignore ]   [ # 3 ]
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ggresko,

Thanks for the response.  In a traditional investigation when someone comes forward with the complaint, we have a chance to speak to the complainant, gather data and maybe speak to witnesses.  In these cases, we do not inform the alleged harasser that they are being investigated unless it is best to get the person out of the workplace while the investigation is conducted.  We first gather facts and then approach the alleged harasser to get their side.

The difference in an anonymous complaint is we don’t know who to speak with.  Does the fact that the complaint is anonymous make it the investigation process different?

If an employee states he/she wants to stay anonymous for fear of losing their job, we are still duty bound to conduct an investigation, are we not?

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Posted: 11 March 2011 10:14 AM   [ Ignore ]   [ # 4 ]
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Bob - I recommend a different approach to investigations so that the accused is notified early in the process (unless there are compelling reasons to postpone the notification). By gathering facts from witnesses or other sources before speaking to the accused, you may find yourself with new data from the accused for which you will have to return to the witnesses/sources with another round of questions. The other risk is that conclusions are drawn too early that skew the neutrality of the investigation. Consider, as well, that the accused may find out from others or just by observation that an investigation is taking place. Especially if your investigation is inconclusive or spurious/a false accusation, you will likely have an unhappy “accused.” This may trigger some legal action by the accused.

Well, with the inability to interview the complainant, all a company can do is speak with the accused, any witnesses or sources (one of whom may end up being the complainant in disguise).

Fear of losing a job is a real fear but protected by anti-retaliation policies and laws. The EEOC’ recent report indicates that race took second place (for the first time) to retaliation claims. Check the company culture and history since it seems there is something that makes the employee not trust that a good faith complaint will be protected activity. If the fear does not match company culture or history, you may have a complex complainant requiring that you proceed with caution.

I recommend you explain to the complaining party that you will proceed with the investigation, but the process itself will be limited by his/her demand not to be identified. Too many variables to suggest. You and I would insist on knowing who made the complaint and would legitimately refuse to engage in a response without that knowledge. It can only get ugly. To protect the company, get the employee who wants to stay anonymous to put it in writing and that she understands that any investigation will be limited.

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Posted: 11 March 2011 10:20 AM   [ Ignore ]   [ # 5 ]
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As to your “For clarification”

All the more reason to make sure the high level employee is on notice and told about retaliation. This way you can ask questions, using the name. Generic, non-specific questions create more rumors than provide info. The direct reports will figure it out anyway - or make up a story that will be harder to control.

If the accused is high enough, you might consider a 3rd party/neutral investigator. An in-house HR/legal person is in a precarious situation if s/he conducts the investigation.

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Posted: 11 March 2011 12:21 PM   [ Ignore ]   [ # 6 ]
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Investigating an anonymous complaint is a delicate situation. Are the allegations true and the complaint was made anonymously to avoid retribution? Or, is the complaint anonymous because the allegations are not true and the complainant is trying to create a problem for the alleged harasser?

My approach is to NOT name names until there is substantiated information/documentation. To identify a person as an alleged harasser without substantiation would be inappropriate, could be predudicial, and could result in a claim of defamation by the alleged harasser. Also, to name the alleged harasser would reflect negatively on the investigator—the investigator would be perceived as biased since naming the alleged harasser without substantion would indicate a belief in (or acceptance of) the allegations prior to substantiation.

As was suggested to you by co-workers, questioning should be general inquiries about any incidents/events that have occurred that would be in violation of policy - prohibited harassment policy and/or other policies.

If/When the allegations are substantiated by others, then the investigator can reinterview potential witnesses to learn what they know regarding specific and substantiated incidents/events.

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Posted: 11 March 2011 02:06 PM   [ Ignore ]   [ # 7 ]
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I would treat the investigation the same—with regard to identifying the accused—whether or not the complaint was anonymous; the only difference is not identifying an anonymous accuser, whether known or not.  I would notify the accused of the allegations ASAP, as a matter of fundamental fairness.  Depending on the nature of the allegations, the accused may or may not be able to, initially, fully respond.  In questioning other potential witnesses, it is possible to limit the scope of the questions to the accused without detailing the actual allegations, through the use of skillfully-crafted, open-ended, non-suggestive questions; use a professional, or outside, investigator, if necessary.  If the witness interviews unearth information, you can always go back to the accused, with follow-up questions based on that new information.  Both the accuser—if known—and the accused should be informed, at least generally, of the results of the investigation.

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Posted: 11 March 2011 02:59 PM   [ Ignore ]   [ # 8 ]
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I agree with Bob and Phyllis. I think you don’t have any choice but to inform the accused, interview him/her and craft some of your questions to reveal information allowing you to create a more targeted list of names for further interviews.  There are very limited circumstances in which I wouldn’t inform/interview the accused.  That’s for everyone’s protection/benefit, including the accused, the accuser and the company.  For example, what if the accused denies the allegations and they turn out to be true? You’ll usually be glad to have the record of the denials.  It’s also the chance to remind him/her of the harassment/non-retaliation policy and to explain that the exec shouldn’t do anything to interfere in the investigation (like talk to others before you get to interview them) because it could color his/her credibility and improperly influence the results.  His/her level of cooperation can be relevant when you analyze the results of the investigation. 

I don’t think you can avoid revealing the name of the exec.  It is what it is.  If revealing the name may assist you to do a thorough investigation, that’s what you need to do.  But it doesn’t have to be positioned as the proverbial witch hunt.  You could start each interview without giving the name and ask questions about general behaviors/interactions etc. as a whole.  Then you could name several specific people, both male and female, and ask about the witnesses’ interactions with/observations of each of them.  Included in that list would be the accused.  Once you do that, you could ask about specific events that may be revealed in the complaint. 

I also agree that if you identify the accuser and s/he insists on remaining anonymous, you have a decision to make.  Depending on the allegations and what the investigation starts to reveal, it may not be reasonable to maintain anonymity.  You may need to reveal his/her name to do a thorough investigation or take effective responsive action.  But if you do keep his/her name anonymous and it will impact the ability to do a complete investigation, you certainly want the accuser to sign off on that fact.

Definitely consider using an outside investigator.  Good luck.

Barrie Gross, Founder
Barrie Gross Consulting

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Posted: 11 March 2011 03:14 PM   [ Ignore ]   [ # 9 ]
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Whoops! Meant I agree with the posters who would inform the accused.  Sorry.

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Posted: 11 March 2011 04:27 PM   [ Ignore ]   [ # 10 ]
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This issue should be addressed on a case-by-case basis.  The question the company and its investigator needs to consider is whether a competent, thorough, and fair investigation can be conducted if the accused is not identified during investigative interviews. Ken Rose [krose@rosegroup.us]

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Posted: 12 March 2011 10:25 AM   [ Ignore ]   [ # 11 ]
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Thanks all for the great responses.  I do trust this forum for good responses and advice. 

Most of the responses are counter to what I have been taught and have worked for me many times in the past.  It has been my understanding that the accused should not be notified that a complaint has been filed against them, unless there is good reason to get the individual out of the work environment while an investigation takes place. I have been taught to conduct an investigation first to gather as many facts as possible through interviews, e-mails, telephone records, etc. before approaching the accused. In that way, we know as many facts as possible before speaking to the accused and the credibility of the accused is immediately known during the interview.

Since we do not know the identity of the complainant, hitting the investigation head on with management employees seems to be the most expeditious way to handle such a complaint. We have to have some level of trust when it comes to interviewing managers who are the direct reports of the accused. In my experience, if it is possible to not inform the accused. the investigation will be accomplished thoroughly as it reduces the risk of the investigation being covertly undermined by the accused - especially if it is someone in a management position.  We inform the accused of retaliation at the time we speak with them.

Thanks again.  Your responses are appreciated.

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