Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

In sexual harassment investigations, it is often the case that harassment occurs behind closed doors, with no witnesses, and it becomes a "he said-she said" scenario.  Instead of reaching a finding that the allegations were "sustained", "not sustained", or "unfounded", I have heard of investigators reaching an "inconclusive" conclusion, and in such an instance, the employer (who asked for the investigation to be conducted) and the complainant are no better off after the investigation than they were before the investigation began.  Such a finding puts the employer back to square one, left wondering, "What do we do now?"

What investigators should keep in mind is that they are being asked to reach a well-reasoned conclusion, considering all facts on both sides of the story, weigh the evidence based on a preponderance of the evidence, and make a credibility determination between the complainant's story and that of the alleged wrongdoer.

According to the EEOC's Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors dated June 18, 1999:

If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?

Demeanor: Did the person seem to be telling the truth or lying?

Motive to falsify: Did the person have a reason to lie?

Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?

Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

It is highly advisable for investigators to discuss these factors in their written reports whenever there are conflicting versions of relevant events.

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I came across an interesting article by a federal district judge (Honorable John L. Kane in Denver) about "Judging Credibility" of witnesses.  Since judging credibility of the complainant, the accused, and the witnesses is something workplace harassment investigators need to do, I thought I'd share a couple thoughts from his article.

Judge Kane talks about "demeanor evidence" and the fact that it can mislead even though it is considered a reliable basis for finding credibility.  Does a witness you are interviewing during an investigation hesitate, stammer, or show fear in answering your questions? Such physical responses alone may not necessarily reflect untruthfulness.  

A shy or timid witness who has never participated in a workplace investigation may simply be fearful of the process.  Judge Kane gave a courtroom example worth noting:

Witnesses are observable only on the stand and for a very short time.  For most of them, testifying is an unusual experience, and they can be expected to be on edge. Judges and juries [and investigators] know little about what makes one person stammer or hesitate. There certainly is no time to delve into the subconscious of each witness.  Perhaps the examining attorney’s bright-red tie reminds the witness of her funny uncle or the bailiff’s bald head triggers repressed emotions toward the teacher who failed her in algebra.  Will she stammer or hesitate while she gets her thoughts in order?

This article simply reminds one not to jump to any quick conclusions about credibility based solely on a witness' slowness in answering a question or stammering responses.  

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