Assessing Credibility While Conducting Harassment Investigations

27 January 2014 Labor & Employment Law Perspectives Blog

Employee Jones tells Human Resources that employee Smith has been making sexually offensive comments at work. Jones provides dates and details. Human Resources interviews Smith, who says Jones is making up the story and categorically denies making any offensive comments at work. Jones’s complaint has suddenly turned into a classic he-said she-said scenario.

If you ever find yourself charged with investigating a workplace complaint and you encounter a similar scenario, what do you do? Do you conclude there is insufficient evidence to support the allegations? In some investigations that may be the final outcome, but simply because Jones and Smith have diametrically opposed stories, do not automatically jump to that conclusion that conflicting stories means insufficient evidence to support the allegations. Instead, in order to satisfy your obligation to conduct a thorough, good faith investigation, we recommend trying to decide who is telling the truth when you get conflicting stories.

But how do you decide who is telling the truth?  Consider the following questions which may help you make a credibility decision.

  1. Are there any witnesses who can corroborate one of the stories?
  2. Has the employee accused of improper behavior ever engaged in similar behavior in the past? If so, it may be reasonable to conclude the employee has done it again.
  3. Has either employee previously shown a willingness or inclination to be dishonest?
  4. Which employee “appeared” more credible when you spoke to him or her? While this is of course subjective, it is nevertheless a fair consideration as you approach the challenge of attempting to decide who is telling the truth.

It may be that at the end of the process in a particular case, you still cannot decide who is telling the truth, and in that circumstance, it may be appropriate to decide there is insufficient evidence to support the allegations. At a minimum however, going through the considerations raised by the above questions, and documenting that you have done so, shows that you have made a reasonable and good faith effort to investigate the complaint. And in the situation where the answers to these questions takes you to a determination of who is more likely telling the truth, document your credibility determination and proceed accordingly.

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