Sexual harassment investigations can be harrowing and difficult even for seasoned investigators. Apart from the challenging human side of things, the new legislative definition of sexual harassment does not serve to lighten the investigator’s load. However, the new definition does offer a reasonably clear scope of elements to form the basis of robust interview planning and outcomes.
First, every investigator must strive to deliver a trauma-informed process and ensure that the investigation does not cause any harm. The investigator must be trustworthy, explaining to parties what they are going to do, and then delivering on those commitments. Each interview must be safe (psychologically and physically), collaborative and empowered (the investigator tells parties what they need to know, and they work together to understand and act on that knowledge). Wherever possible, we must give parties choices about how they participate in the process.
Next, the interview questions need to cover each legal element in the definition of sexual harassment, while also avoiding unnecessary triggers, blame or interrogation. To meet the legal definition, the conduct must be:
- Unwanted
- Objectively offensive, humiliating or intimidating
- A sexual advance, sexual request, or any other conduct of a sexual nature
A thorough interviewer will be sure to cover off each of these elements. But how can you ask a person if the conduct was unwanted, without making them feel blamed or attacked? How do you define what is sexual, or not? Do intersectional qualities, like a person’s gender identity, factor in to an “objective” assessment? It helps to draft specific wording for these questions, so you can ensure your questions are as safe as possible for all parties.
To ensure procedural fairness, you should ask a party to be very specific when describing the alleged conduct (at least once). This is necessary to properly particularise the conduct, but it can mean using words, naming body parts or describing actions that might make a party extremely uncomfortable. It helps if your party knows these questions are coming, and has time to mentally prepare for them.
Also important is your interview structure. When talking about sexual harassment, it is highly likely that your parties will have emotional responses. This may mean that to keep them safe you need to pause or stop the interview, or skip some areas of questioning. Some parties need time to warm up, while others want to get straight to the important details. A collaborative approach to interviewing suggests that you share your proposed topics with a party before the interview, and work together on your approach.
Finally, sexual harassment never occurs in isolation. There are always environmental, cultural or social factors which allow it to occur, and the investigator (and employer) has a duty to identify and respond to these causes or gaps even if the sexual harassment allegations are not substantiated. Interviewers should explore what parties understand to be acceptable behaviour, what else has happened in the workplace, and what results they expect from the process.
To gain expert knowledge in trauma informed practices please take a look at our training course Trauma Informed Investigations (Advanced).
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Credit:Antonio_Diaz
