Should a workplace investigator in a sexual harassment or discrimination investigation view the personnel file of the complainant / alleged victim at all? If so, at which point in the investigation should it be viewed, and under what circumstances? These questions are debatable among workplace investigators, but I have my preference, and of course, an opinion.
One opinion voiced is "how can the investigator understand the context of the case and give the
complainant or accused an opportunity to address the fact that this is her 7th complaint in 7 weeks or that this is the third time an employee has accused this person of inappropriate touching if the investigator does not read the personnel files prior to the investigatory interviews?"
My answer to that question is simple. Asking the complainant how many times an incident occurred, and how many times he or she has complained about it, should be questions an investigator already asks in every investigation anyway, with or without a prior review of a personnel file. Further, what if this information is NOT in the personnel file– Does that mean the investigator wouldn’t ask these questions and/or the questions wouldn’t be relevant? Of course not.
Second, my personal opinion is that the investigator is supposed to be coming into the investigation as an impartial fact finder–just like a jury is supposed to be impartial and have no preconceived notions. A jury doesn’t get to hear about the contents of the complainant’s personnel file from the employer’s lawyer (defense) before they hear the complainant’s lawyer’s (plaintiff’s) opening statement. Why should an investigator be any different?
Third, what if the personnel file of the complainant contains information that might be prejudicial to the complainant, but is completely irrelevant to whether sexual harassment occurred? For example, what if the personnel file discloses performance problems, attendance problems, wage garnishment documentation, or any of myriad items of potential embarrassment to the complainant? I can envision sitting in a deposition and being queried by a plaintiff’s attorney about how I was surely biased against his/her client, the complainant, from the very beginning, if I learned of all of these problems about the complainant before I even heard his/her story? The investigator might as well paint a red bull’s eye on his/her forehead.
Another view I’ve heard is: "Reading the [personnel] files afterwards will only extend the duration (and burden) of the process unnecessarily if the investigator must then go back and reinterview once she has learned about prior conduct that may challenge credibility. Why can’t the investigator sufficiently prepare by reading the files and still maintain neutrality? Isn’t that our role?"
In response to this, I’d like to share what a leading Employer/Management law firm, which frequently conducts workplace investigations, has to say on the subject. Although agreeing that personnel files "may" become relevant in credibility assessments, its advice is not to prejudge the investigation:
It is not necessarily appropriate, however, for the investigator to review personnel files before the investigation begins or at the beginning of the investigation. Remember, the investigator should not have any preconceived judgments or opinions about the allegations or persons involved. If the investigator learns about the prior complaints made by the complainant or against the alleged harasser, or of prior discipline against the alleged harasser, it may affect his/her ability to remain impartial. Thus, the investigator should only review personnel files when it becomes necessary, such as in making credibility determinations or, in the event he/she is called up to do so recommending the level of disciplinary action, if any, to impose." See, Finding the Facts: Disciplinary and Harassment Investigations, Liebert Cassidy Whitmore.
Further, assuming solely arguendo that the "duration (and burden)" would be increased by such a process, such matters must be secondary to the integrity of the investigation. The personnel file can always be obtained at the initiation of the investigation, but not reviewed until, or unless, necessary. In any event, follow-up questions are typical in most investigations, so any time ("or burden") spent in such a process is to be expected. All of these same points apply concerning viewing the accused harasser’s personnel file as well.