Most internal investigation courses do a great job talking about the law and how it applies to offensive behavior complaints, but fail to educate their students on the psychology involved.
Here are a few ways in which an investigator can follow the letter of the law and still lose: Treat Your Employee as a Plaintiff You may have the most laid-back company on earth, but as soon as an employee complains of sexual harassment, it's a whole new ball game.
Employment attorneys, whose job it is to CYA, immediately jump into litigation mode and begin to anticipate every possible legal curve ball that your employee could throw at them.
This creates anxiety in HR professionals, which changes how they interact with the complainant.
The employee, who is already paranoid about what will happen now that she's opened her mouth, has her worst fears confirmed.
She feels like a pariah, she is left in the dark about what's happening, and she is convinced that the retaliation she feared would happen has begun.
Ignoring the Perception of Bias It doesn't matter if you have the calm of the Buddha or the rational mind of Socrates, if the parties involved think you are biased, then, for all intent and purposes, you are.
Never think your stellar investigation will persuade them otherwise.
There are ways to assess this at the beginning of the investigation; make sure you do.
Otherwise, you run the risk of conducting an internal investigation, having a dissatisfied party, and then calling me to do another one.
Talking Like a Lawyer "You are being terminated for sexual harassment.
" Really? Last time I checked, sexual harassment is a legal finding that can only be determined in a court of law.
The accused may be guilty of a violation of company policy or misconduct, but don't call it sexual harassment.
Only a judge or jury can decide this.
Focusing on the Wrong Issue Yes, it is unbelievably frustrating when you've done everything in your power to encourage your employees to speak up - conducted highly interactive harassment prevention training, routinely asked your employees how things are going, queried about any interpersonal problems as part of the performance review - and your employee is silent as death.
Silent, that is, until his performance is under the gun or you're speaking to her about her tendency to under-dress.
However, now is not the time to express that frustration.
I can't tell you how many times I've been conducting an independent investigation and the complainant kept telling me how "all the HR person focused on was why I didn't say anything before now.
" Yes, the fact is relevant - it is pertinent when assessing the complainant's credibility, it is relevant to possible motives, etc.
However, don't spend time interrogating your complainant about why she kept her mouth shut until now; it will come back to haunt you.
The Bottom Line Conducting a good offensive behavior investigation isn't just about following the law; it's about understanding the psychology behind it.