Sexual Harassment Reports and Investigations

I-2019-21


Effective Date: Expiration Date: Chapters:
Dec. 31, 2019 When Superseded 16   18  

Overview

NOTE: This issuance supersedes DPM issuance No. I-2018-8, Sexual Harassment Reports and Investigations, dated April 25, 2018.

The District of Columbia government is committed to maintaining a safe work environment free from harassment, abuse, and intimidation for all its employees. This issuance defines sexual harassment and provides steps employees must take to report incidents of misconduct. This issuance also outlines how agencies should handle and investigate sexual harassment reports. This issuance provides updates to include additional information for Sexual Harassment Officers (SHO) including clarification on the investigation process and report.


Maintaining an Environment Free from Sexual Harassment

The District government reaffirms its commitment to maintaining a harassment-free work environment.

The Mayor established a policy and related procedures mandating that workplaces be free from all forms of sexual harassment (Mayor’s Order 2017-313). This policy protects individuals from workplace sexual harassment whether they are employees, contractors, interns, applicants for District government employment, or any other persons engaged by the District of Columbia government to provide permanent or temporary employment services. The District’s laws and policies also prohibit retaliation against anyone who reports harassment or participates in an investigation.


Sexual Harassment Defined

Sexual harassment is unwelcome conduct of a sexual nature based on one’s sex, or perceived sex, that affects the terms or conditions of employment. When unwanted sexual conduct impacts a job-related decision, such as assignments, training opportunities, promotions or firing, or when the conduct creates a hostile work-environment because it is severe or pervasive, it is considered sexual harassment.

Sexual Conduct Relating to Job Benefits (Quid Pro Quo)

A supervisor engages in quid pro quo sexual harassment when they make unwelcomed sexual advances, requests for sexual favors, or engage in other verbal or physical conduct of a sexual nature, based on an employee’s sex or perceived sex, and uses that person’s submission or rejection of such conduct as the basis for job-related decisions. For example, sexual harassment may occur when there is an expectation that an employee will receive a job-related benefit if they submit to the sexual conduct.

Hostile Work Environment

An individual creates a hostile work environment based on a person’s sex or perceived sex if they subject the person to unwelcome sexual conduct, and this conduct is severe or pervasive enough to affect a term, condition, or privilege of employment. For example, an individual may create a hostile work environment for their coworker by constantly using unwelcome, sexually degrading language to describe an individual or by describing their own sexual experiences. The District government strongly discourages sexual conduct in the workplace even if these activities are between two consenting parties, as this conduct has the potential to create a hostile work environment for third parties who find these behaviors uncomfortable or offensive.

  • Pervasive conduct. Sexual or romantic comments or gestures are unwelcome when an employee finds them to be offensive rather than flattering or innocent. Different people have different sensitivities. A single offensive comment will not usually rise to the level of “sexual harassment.” However, if an employee asks that the comments stop but the comments persist, the conduct can be deemed “pervasive.”
  • Severe conduct. Some conduct is so severe that a single occurrence can constitute sexual harassment. Severe conduct has sexual or romantic overtones and would offend a reasonable person. This type of conduct is always unacceptable in the workplace. Examples of severe conduct include:
    • Sexually assaulting an employee;
    • Displaying sexual organs in any manner;
    • Using sexually oriented language to criticize or otherwise degrade an employee or a class of people.

Designating a Sexual Harassment Officer

To assist employees and agencies with accepting, receiving, reviewing, and investigating sexual harassment complaints, Mayor’s Order 2017-313 requires that all agencies designate a Sexual Harassment Officer (SHO). Agencies are also required to designate an office or alternate person for when the SHO is unavailable. Agencies must submit the names of their designees to OHR and DCHR via email at OHR@dc.gov and DCHR@dc.gov, or at any other email address designated by OHR or DCHR, with the subject line, “[Agency Name] – SHO Designations.” If an agency makes any changes to the SHO designation, they must notify both agencies within 10 business days.

NOTE: When agreed upon, smaller agencies may utilize SHOs from larger agencies, or make other mutually agreeable arrangements for designating SHOs. Regardless, the names of all designees must be sent to OHR and DCHR.

Who Can an Agency Designate as a SHO?

Agencies can designate SHOs at their discretion so long as the designee is competent in Equal Employment Opportunity (EEO) laws and has no inherent conflict of interest. Due to their role in advocating for, or defending the agency, DCHR recommends that agencies do not select the General Counsel, or attorneys in an agency’s Office of General Counsel, to serve as the SHO. OHR may have additional information and guidance on SHO designations.

Since the SHO will investigate allegations of a very sensitive nature, agencies must designate employees with specific criteria in mind. When designating employees to serve as a SHO, the agency should designate someone with:

  • Experience – individuals designated as SHOs should have experience investigating complaints or have related education and training. For example, experienced investigators know what to look for, how to find it, and how to analyze what they find; 
  • Impartiality – individuals serving as SHOs must be perceived in the workplace, and by the parties to the complaint, to be fair and objective; and
  • Professionalism – individuals investigating sexual harassment complaints must perform their responsibilities with the utmost professionalism, without interference from personal feelings or bias. While investigating these complaints, the SHO should maintain the confidentiality and integrity of the process to the fullest extent possible.

Individuals who may be ideal designees include:

  • HR Advisors or HR Managers;
  • Individuals competent in or familiar with EEO provisions;
  • Individuals experienced in conducting investigations; or
  • EEO Officers or former EEO Counselors.

Providing the Contact Information of Sexual Harassment Officers

To ensure that employees know who to contact for sexual harassment concerns, agencies must post the names and contact information of their SHO and alternative contact in a high visibility or high traffic area (e.g., a break room). Employees may also obtain their Sexual Harassment Officer’s contact information from their agency’s Equal Employment Opportunity (EEO) Officer, Human Resources (HR) office, or the Office of Human Rights. DCHR also maintains a list of Sexual Harassment Officers on its website at https://dchr.dc.gov/sexual-harassment.


Reporting Sexual Harassment

All District of Columbia employees are responsible for ensuring a workplace free of harassment. To that end, all employees who know of incidents of sexual harassment, or know of conduct of a sexual nature that could create an intimidating, hostile, or offensive work environment should report the situation immediately as outlined below. Agencies should protect the confidentiality of all aspects of the harassment complaints and those reporting such complaints, to the greatest extent possible consistent with the investigation and resolution of the complaints.

Alleged Victims of Sexual Harassment

Alleged victims of sexual harassment should report the harassing behavior to one of the following individuals within their agency as soon as possible:

  • The alleged victim’s manager or supervisor,1 or the manager or supervisor of the alleged harasser;
  • Sexual Harassment Officer;
  • Alternate SHO or Office; or
  • General Counsel.

If victims require assistance or are not able to report to one of the individuals above, they may contact the Sexual Harassment Officer Program Coordinator at the D.C. Department of Human Resources at dchr.sho@dc.gov.

Witnesses to Sexual Harassment

Employees have a responsibility to report incidents of sexual harassment or behavior that may create an intimidating, hostile, or offensive work environment. Witnesses should report incidents to the following individuals within their agency:

  • The witness’ manager or supervisor[1], or the manager or supervisor of the alleged harasser;
  • Sexual Harassment Officer;
  • Alternate SHO or Office; or
  • General Counsel.
NOTE: If the employee does not feel comfortable reporting to the SHO or the alternate SHO, the employee may report to a manager or supervisor; however, unless there is a conflict of interest with the SHO, these individuals will communicate the employee’s allegations to the SHO, who will ultimately investigate the matter.
[1] If the alleged harasser is the employee’s supervisor, the employee may report the misconduct to the alleged harasser’s supervisor or to the agency’s Sexual Harassment Officer.

Rights Under the D.C. Human Rights Act

In addition to reporting to an agency SHO, or other individual as identified above, under the D.C. Human Rights Act alleged victims may file a claim of sexual harassment with an EEO Counselor, directly with the Office of Human Rights (without going through EEO counseling) or in court.

Filing an Administrative Complaint with the D.C. Office of Human Rights

  • An individual may file an administrative complaint of sexual harassment with the Office of Human Rights (OHR) within 1-year of the incident(s) or discovery of the incident(s).
  • Reporting incident(s) of sexual harassment to the Agency’s SHO does not constitute reporting a complaint of sexual harassment with OHR. Therefore, reporting an incident to the SHO also does not toll (or delay) the deadline for reporting a complaint to OHR.
  • Reporting incident(s) of sexual harassment to the Agency’s SHO does not limit or delay the individual’s right to file a complaint with the Office of Human Rights, as both processes can run parallel to each other.
  • Please note that an individual is not required to report an allegation of sexual harassment to an Agency EEO Counselor, as required for other EEO claims (e.g., retaliation), prior to filing a claim at OHR. Individuals may file directly with OHR within the timeframe noted above.

Filing a Civil Action in Court

  • An individual may file a complaint of sexual harassment with the D.C. Superior Court within 1-year of the alleged harassment or discovery of the incident(s).
  • Reporting the incidents of sexual harassment to the Agency’s SHO does not limit or delay the individual’s right to file in D.C. Superior Court, as both processes can run parallel to each other.

Handling Reports of Sexual Harassment

Managers, Supervisors, and HR Officials

Managers, supervisors, and HR officials who receive reports of alleged sexual harassment must immediately relay the report to the agency’s Sexual Harassment Officer and take any appropriate remedial actions, after consulting with the agency General Counsel.

Sexual Harassment Officers

The role of the SHO is to accept, review, and investigate sexual harassment claims by gathering information and preparing a written report outlining the investigation, the facts gleaned from the investigation, and any recommendations within 60 days after a claim is reported. Upon receiving a report of potential sexual harassment, the SHO must:

  1. Gain a full understating of the complaint;
  2. Immediately notify the General Counsel, who must notify the Director of the Mayor’s Office of Legal Counsel within 3 days;
  3. Acknowledge receipt of complaint, notify the complainant that the matter is being investigated, and contact the complainant to gather more information;
  4. Make any additional required communications to, for example, gather relevant facts through documentation and interviews;
  5. Investigate; and
  6. Prepare and deliver a report to the agency Head or designee on the investigation.

Maintaining Confidentiality

Any individuals involved in investigating reports of alleged sexual harassment must take reasonable steps to ensure that the details of the complaint and investigation remain confidential, especially when information pertaining to a sexual harassment complaint changes hands or is shared as part of an investigation. Failure to safeguard confidential information can result in corrective or adverse action, up to and including separation.

Notwithstanding the confidentiality requirement, the alleged harasser is entitled to notification of the allegations and must be given an opportunity to respond. Additionally, the confidentiality requirement should not prevent an agency from reporting a suspected illegal or improper act, such as sexual assault, to the appropriate enforcement authority, or from cooperating in any related investigation.

All information obtained in the investigation shall be used by the SHO only for purposes of the investigation.

Complaints Against Senior Officials

Complaints against certain senior officials (specified below) must be referred to specific government officials for review. The following chart outlines these requirements.

If the complaint is against...  
Employees with the Mayor’s Office of Legal Counsel Refer the report to the Mayor’s General Counsel.
An Agency Director Refer the report to the SHO for the appropriate Deputy Mayor; the complaint should also be reported to the Mayor’s General Counsel if the complaint is against an agency Director appointed by the Mayor.
A Deputy Mayor Refer the report to the SHO at the Office of the City Administrator.
The City Administrator Refer the report to the Mayor’s General Counsel.
The Mayor’s General Counsel The matter shall be handled by an independent consultant.
The Mayor The matter shall be handled by an independent consultant.

Investigating the Complaint

Once a SHO has received a complaint of sexual harassment, they are required to immediately begin the investigation process, which must be completed within 60 days of the complaint. The following are nine steps that should be part of any successful investigation:

  1. Define the Scope of the Investigation;
  2. Recommend Immediate Action to the Agency Director or General Counsel (such as temporary employee reassignments), if needed;
  3. Conflict of Interest Determination;
  4. Plan the Investigation;
  5. Conduct Interviews (if possible, record all interviews);
  6. Gather Documents and Other Evidence;
  7. Evaluate the Evidence;
  8. Document the Investigation; and
  9. Report to the agency Head, or their Designee, on the investigation, including what the investigation entailed and what details or information were confirmed (or not confirmed) by the evidence.

The SHO is responsible for conducting the investigation and completing the investigation report, which the SHO will provide to the agency Head or their designee only. At various times during this process, the SHO may seek guidance or support from the agency General Counsel. For example, the SHO may seek the General Counsel’s assistance to gain access to relevant information in the possession of a sister agency (such as email records from OCTO), to act to ensure the cooperation of agency witnesses, or to prevent an employee’s interference with the investigation.

Step 1. Define the Scope of Investigation

In general, SHOs should take all allegations of sexual harassment seriously and conduct thorough and complete investigations. However, situations may arise when the alleged conduct is of a nature that does not require an extensive investigation to disclose the facts. For example, all parties may agree as to the circumstances of the complaint, and thus the matter may be resolved quickly through informal discussions. Regardless of whether a full investigation is required, the SHO should speak with the relevant parties, document or record all information received, and document all efforts undertaken to address the matter.

Example 1: An employee, on a single occasion, asks his co-worker to have dinner with him one night. The co-worker declines, saying she has a boyfriend. The employee replies: “He’s a very lucky guy.” This makes the co-worker uncomfortable and she reports the situation, even though the employee did not further pursue the matter.

In this scenario, a full investigation is probably unnecessary. Instead, a discussion with the two parties, and possibly their supervisor, will likely provide the SHO with the facts and resolve the situation. The SHO should document such efforts and any resolution reached in the Investigation Report.

Step 2. Recommend Immediate Action to the Agency, If Needed

Pending the conclusion of a sexual harassment investigation, the SHO may consult with the General Counsel to recommend immediate workplace changes necessary to prevent further harm and to ensure the investigation is free from disruption. The most common action that may be taken is to separate the alleged harasser from the complainant (or vis-versa). If immediate action is needed, such action will be initiated by the agency General Counsel and should be processed in accordance with the District Personnel Manual and any applicable Collective Bargaining Agreement.

Avoid Retaliation Claims! In many sexual harassment investigations, immediate action will need to be taken while the investigation is pending. However, such actions should not penalize the employee reporting the harassment or the alleged harasser. If the parties must be separated while the investigation is pending, reassigning the alleged harasser or placing him or her on administrative leave with pay is preferable to moving the reporting employee.

Separating the Alleged Harasser from the Complainant

The agency must assess whether the alleged harasser should be separated from the complainant’s work environment. It may be appropriate to take such a step when there are allegations of:

  • Serious misconduct, such as sexual touching, sexual assault, violence, threats, or extremely abusive verbal harassment;
  • An ongoing pattern of harassment; or
  • Misconduct where the complainant(s) or witnesses appear intimidated by the alleged harasser.

As previously noted, moving the complainant may be perceived as retaliatory. The best way to avoid claims of retaliation is to temporarily reassign the alleged harasser in a reasonably comparable placement, even if in a different agency after consulting with DCHR, or place them on a temporary telework schedule or administrative leave with pay. If these steps are taken, the alleged harasser should be informed that the arrangement is temporary, that no conclusions have been reached as to the sexual harassment allegations, and that the action being taken is in no way punitive.

Removing the Complainant from the Work Environment

Sometimes, the complainant of alleged sexual harassment will ask to be reassigned or given time off pending the investigation. If this occurs, find out and document exactly why the employee wants to be taken out of the work environment.

If the alleged victim is experiencing trauma or other health-related issues because of the alleged sexual harassment, the agency should take appropriate actions as required or permitted by law to assist the employee. If the alleged harasser has threatened the complainant, or co-workers are shunning the complainant, this is information that should be immediately brought to the attention of the agency General Counsel. Whatever the explanation, it is important to reiterate that retaliation by the alleged harasser or co-workers is not tolerated. Additionally, make the best arrangements to address the complainant’s concerns. If the complainant is removed from the work environment, make sure that the employee can still be available to participate in the investigation.

NOTE: Expedite the investigation whenever one or more parties are reassigned or placed on administrative leave pending the investigation.

Criminal Allegations

Whenever a report of sexual harassment or subsequent evidence reveals potential criminal conduct, such as sexual assault, physical violence, or threats to do bodily harm, stop the investigation and consult agency General Counsel immediately. The agency’s General Counsel, in consultation with the Mayor’s Office of Legal Counsel, will determine whether law enforcement should be contacted and what other immediate steps must be taken. Do not conduct additional interviews or resume your investigation until you have consulted your agency General Counsel or the MOLC and received their approval to proceed. Failure to comply with this instruction may impact the criminal investigation and/or case of law enforcement officials.

Step 3. Conflict of Interest Determination

Generally, the agency’s Sexual Harassment Officer (SHO) will investigate reports of sexual harassment. Smaller agencies are authorized to enter into cooperative agreements with other agencies if their staffing level does not allow for the appointment of a dedicated SHO. In these cases, the SHO investigating the report may be an employee from another agency. In the event of a conflict of interest, or of a claim of bias that could reasonably be raised against the impartiality of the assigned SHO, the assigned SHO should immediately notify the agency General Counsel to assist with identifying another SHO to conduct the investigation.

If another SHO is assigned to conduct the investigation, the original SHO should notify the complainant in writing of this change. The written notification should identify the new SHO as the formal contact for the investigation and as the individual who is conducting the investigation on behalf of the agency. The written notification is also useful for communicating to involved parties that an investigation is underway.

Step 4. Plan the Investigation

Before investigating, the SHO must plan how the investigation will be carried out. To do this, DCHR recommends completing the attached Investigation Plan (See Attachments 3 and 4). To complete the plan, the SHO will need to rely on the complaint of the complainant or third-party witness reports of the potential harassment.

Meet with the Complainant

The SHO must meet with the individual reporting the sexual harassment allegation. The individual may be an alleged victim, third-party witness or an individual to whom the allegation was reported. It is important to clarify the exact allegation from the individual making the report to the SHO. If they are not a witness to the allegation, the SHO should also make efforts to clarify the allegation from the original source of the complaint, which might be the alleged victim. These preliminary meetings are only for understanding the actual allegation. More thorough interviews of these individuals should occur as the investigation progresses.

Understand the Complaint First

Before drafting the investigation plan, the SHO must have some understanding of the complaint and allegations. Initially, the SHO should verify the allegations with the individual originally reporting the situation, and then brainstorm and try to answer the following types of questions:

  • Who complained? Are there multiple complainants?
  • What is the alleged misconduct?
  • Were there job-related promises or threats (quid pro quo), or is this a hostile work-environment claim? Or were there both?
  • Who is the alleged wrongdoer (their name, position)? Is there more than one harasser?
  • How many incidents of harassment have been alleged?
  • Where and when did the harassment take place?
  • Have any potential witnesses been named?
  • How did the harassment come to the attention of the SHO?

Finding the answers to the above questions will help the SHO decide who to interview, what documents and other evidence might be available, and what type of questions to ask witnesses.

TIP! Site visits are extremely helpful at placing investigations and evidence into context. Whenever the SHO determines that the environment may be relevant to the events, the SHO should make all reasonable efforts to visit relevant locations. For example, if the alleged harassment took place in an office, visit the office to see how it is laid out and where individuals sit relative to other employees.

Investigation Plan

After establishing the general nature of the complaint, and before contacting additional witnesses or gathering any documentary evidence, complete a draft investigation plan as thoroughly as possible. The draft plan can be used to communicate the scope of the investigation to necessary people. Keep in mind that the initial draft will be an incomplete plan and the SHO will further develop the plan as the investigation proceeds.

OVERVIEW

Each investigation plan should have an Overview section. Give the investigation a title, a description with key objectives, and the investigation scope.

BASIC INFORMATION

The Basic Information section provides the allegations. Describe what was alleged – who was harassed, by whom, when and how?

CHRONOLOGY

Supply a succinct chronology of alleged events leading to the investigation. This is not a chronology of the investigation; it is a chronology of the harassing behavior and how that behavior came to the attention of the SHO.

EVIDENCE

List any known direct and circumstantial evidence and potential witnesses. The list should be concise, but sufficiently descriptive to alert the reader as to the importance of the physical evidence or witnesses.

PLANNED INVESTIGATION ACTIVITY

This section lists events that will take place during the investigation. This can include meetings, document reviews, and formal witness interviews. This section also includes a listing of notifications made to individuals during the investigation, such as notifications to the General Counsel and to witnesses for purposes of scheduling interviews.

Notify the General Counsel

Immediately upon receiving a report of an allegation of sexual harassment, the SHO shall notify the agency’s General Counsel of the allegation and share with the General Counsel all information related to the allegation, including but not limited to: name(s) of the alleged harasser, alleged victim and witnesses, nature and type of harassment, all relevant date(s) and location(s), and a description of the incident(s) to be investigated. The General Counsel is responsible for determining what information, if any, should be communicated with the agency’s leadership and external authorities. The General Counsel should notify the Mayor’s Office of Legal Counsel of the following within three days of receiving a report of sexual harassment: names of the alleged harasser(s), alleged victim(s) and witnesses; nature and type of harassment; all relevant date(s) and location(s); and a description of the incident(s) to be investigated.

Revising the Plan

The investigation plan will be fluid and must be updated as the investigation proceeds. When new evidence is discovered, or new witnesses come to light, that information should be added to the plan. Similarly, the plan should be updated with itinerary and notification changes.

Step 5. Interviews

Once an investigation plan is in place, the SHO will need to direct their focus to interviewing witnesses. Whenever possible, the SHO should have a second person, who is trained in investigations, with them during interviews. Additionally, the SHO should never interview more than one witness at a time – each witness should be interviewed separately.

The SHO should schedule and complete witness interviews as quickly as possible. Generally, the SHO should aim to complete all interviews within days of receipt of the initial complaint, or as soon as possible thereafter. This allows for the investigation to preceed efficiently and minimizes investigation-related discussion among witnesses in the workplace. DCHR recommends scheduling formal interviews in writing by sending separate email notifications to the complainant, alleged harasser, and potential witnesses, which outline their rights and what to expect. (See Attachment 6).

If interviewing a union employee, the SHO should refer to the agency’s collective bargaining agreement and notify employees in writing that they have a right to union representation at the interview, if applicable. Some agencies require investigators to obtain written statements or affidavits after an interview. If it is feasible, DCHR highly encourages agencies to tape-record interviews with witnesses to ensure record accuracy.

TIP! The SHO should write down anticipated questions before interviewing a witness. This practice will give the interview direction and will ensure that all necessary topics and questions will be addressed.

Opening the Interview

The SHO will want to open every interview with similar remarks. Here is a roadmap that may be used for opening an interview with a witness:

  • Purpose. The SHO may state that they are investigating a workplace complaint and that their role is to investigate the matter by gathering as much information as possible. If it is the complainant being interviewed, the SHO should advise the complainant that their complaint is being investigated. If it is the alleged harasser being interviewed, the SHO should notify the individual that they are the target of the investigation.
  • Process. Explain that the investigation process involves interviewing multiple witnesses and reviewing any necessary documents. Witnesses must be made aware that the agency will take appropriate steps if it finds that misconduct occurred.
  • Confidentiality. Explain that the interview will be treated as confidential as much as possible by the agency and that the agency hopes the witness will use discretion and limit their disclosure of anything discussed in the interview to maintain the integrity of the investigation process. Generally speaking, the SHO should not, however, require the witness to maintain confidentiality or to sign a confidentiality agreement. The SHO should also not promise or guarantee a witness total confidentiality by the agency, as the investigation and subsequent actions will require the agency to disclose information about the complaint as necessary.
  • Retaliation. Explain that retaliation for a witness’ cooperation in the investigation is prohibited and that the witness should immediately notify an EEO counselor if any retaliation occurs due to the witness reporting sexual harassment or participating in the investigation process.
  • Rights and obligations. Explain rights and obligations of witnesses, including but not limited to the obligation of government employees to cooperate in agency investigations of sexual harassment complaints. Additionally, if the complaint includes allegations of sexual assault or other possible crimes, the SHO must let the complainant know that they may also get help from the DC Victim Hotline, which provides free confidential, around-the-clock information and referrals for victims of all crime in the District of Columbia. (The DC Victim Hotline is available by phone at 844-443-5732 and online at https://dcvictim.org.)
  • Questions or concerns. Ask the witness if they have any questions or concerns about the process.

Interviewing the Complainant(s)

Generally, the individual who is the alleged victim of sexual harassment should be the first person interviewed. The alleged victim should be interviewed within five days of acknowledging the initial complaint. The SHO should ask the individual to provide any and all potential evidence of offensive conduct such as emails, pictures, or other physical evidence. The alleged victim should be able to provide the clearest picture of the alleged misconduct and provide insight into other potential witnesses and evidence. In addition to being the first witness interviewed, this individual may need to be re-interviewed after documents are collected and statements are received from all other witnesses to clarify any inconsistencies in the evidence.

Harassment claims usually involve a pattern of multiple incidents that occur over a period of time. When interviewing the alleged victim, the SHO must ask precise questions and take clear notes. The best practice is to have the alleged victim list all incidents, then go through each incident in detail.

Sample Questions[2]

  • What happened? How many incidents have there been?
  • When did each incident take place (date as well as time, if possible)? How often?
  • Where did they take place?
  • Who was involved? What did that person say or do?
  • How did you respond? Did you say anything to [the employee]? What did you say? Did you do anything?
  • Who else was present? Could anyone else have witnessed the incident(s)?
  • Where did you go immediately after the incident? Did you tell anyone what happened? Who?
  • Prior to these incidents, what was your relationship like with [the employee]? Are you aware of similar incidents with other employees?
  • Have you been affected by this? How?
  • Are there any documents or other kinds of evidence relating to the incidents? Were there any email communications? Did you take notes or make journal entries? Were there any additional conversations with others about the incidents?
  • When did you first report this and whom did you tell? What did you tell them? How did they respond?
  • How would you like to see this problem resolved?
  • Is there anyone else you think I should interview regarding these incidents?
  • Is there anything else you think I should know while I am investigating this matter?
Open-Ended Questions. When interviewing the alleged victim, use open-ended questions. Ask: who, what, when, where, why and how. Try to keep closed-ended (yes/no) questions to a minimium. The goal is to get the witness to open up and tell you their story in their own words.
[2] While these sample questions may be listed together, witnesses should always be asked one question at a time. Resist the urge to ask compound or long questions.

Victims who have trouble remembering important facts about the alleged sexual harassment may be experiencing trauma. In this case, usual interview questions may not be as helpful initially. Some experts suggest that such victims may benefit from the use of sensory-based interview questions (such as “do you remember what was playing on the radio in the car”; “what color was the room”; etc.) as these types of questions help place the victim back at the scene of the incident and may help jog their memory.

Interviewing Third-Party Witnesses

After conducting an initial interview of the complainant, it is usually most effective to interview any third-party witnesses to the alleged harassment. Third-party witnesses are all other witnesses, excluding the alleged harasser. Interviewing third-party witnesses after the complainant allows the investigator to confirm or discount allegations made by the complainant and assists in obtaining a complete account of the potential misconduct before asking the accused employee to respond. A third-party witness should be interviewed within five days after the interview with the complainant. If there are multiple third-party witnesses that must be interviewed, each subsequent witness should be interviewed as close in time to the first third-party witness as possible, to complete the investigation in a timely fashion.

When questioning third-party witnesses, the goal is to gather as much information as possible without giving too much information away. The interview should begin by stating, in general terms, why the SHO is interviewing the witness. The SHO should inform the witness that they are investigating a workplace incident, and that the witness might have information that will help determine what occurred. Then, the SHO will need to move into questions that will help determine whether the witness saw or has information regarding the alleged incident(s).

Sample Questions

  • What is your typical workday or workweek like? Who is your supervisor? What time do you arrive? Leave? What are your typical responsibilities?
  • Do you work with [the alleged victim] or the [accused employee]?
  • How would you characterize their working relationship?
  • Has [the alleged victim] ever spoken to you about [the accused]? Has the [accused employee] ever spoken to you about [the alleged victim]?
  • Have you seen any interactions between [the alleged victim] and [the accused] that made you uncomfortable? Have you seen any interactions that appeared to be of a sexual or inappropriate nature? Describe those interactions. Have you heard [the accused] speak to or about [the alleged victim] in a sexual or inappropriate nature? Describe those conversations.
  • [If the witness saw or heard anything that is the subject of the complaint, ask questions to find out what the witness saw/heard, where it occurred, and when.]
  • Have you heard these issues discussed in the workplace? When, where and by whom?
  • Have you ever had a problem working with [the alleged victim] or [the accused]? If so, what are those problems?
  • Do you know of anyone else who might have information about these incidents or who might have experienced similar treatment from [the accused]?
  • Are there any documents or other evidence you think I should review that relate to these incidents? Were there any email communications?
  • Based on our conversation, is there anything else you think I need to know as I continue my investigation?

Interviewing the Alleged Harasser

As noted, the employee who allegedly engaged in the harassing behavior should usually be interviewed last. This interview will be uncomfortable for the employee and the SHO regardless of whether the accused employee engaged in the alleged conduct. To avoid the need for a follow-up interview, it is important to have as much information as possible before this interview.

When interviewing an employee suspected of misconduct, they might be defensive. When opening the interview, the SHO should make clear that the agency has a legal obligation to investigate the matter and has not yet made any determination or judgments regarding the allegations. The SHO should also make clear that the SHO’s role is to be neutral and unbiased and to find out what happened. The accused employee’s perspective is part of information gathering and is needed before any conclusions can be reached.

As stated previously, the accused employee may be allowed to have a union or other representative present during the interview, although this should not unduly delay the interview process and SHOs are not required to permit such representative to disrupt the interview or answer questions during the interview on the employee’s behalf.

Is the alleged harasser’s participation in the interview voluntary? A SHO may encounter an alleged harasser who wants to avoid being interviewed. Before interviewing the alleged harasser(s), consult agency General Counsel on whether the accused employee should be compelled to participate in the investigation. Unless the case involves allegations of criminal conduct, their participation will usually be mandatory. However, this decision should be made by agency General Counsel.

The SHO also needs to plan the sequence of questions for the accused employee. The first series of questions should be simple, non-controversial questions that the employee can easily and willingly answer. This will establish ease and rapport, which may help to minimize any defensive tension that might otherwise occur.

The SHO must advise the employee of the accusations made against him or her. After preliminary introductions and questioning, the SHO must advise the accused employee(s) of the accusations made against them. Although the SHO does not need to identify the person who made the sexual harassment complaint, the SHO must allow the accused a fair opportunity to respond and thus may have to disclose the identity of the alleged victim or complainant.

When interviewing the accused, the SHO should outline the totality of the accusation and ask the accused for their response. Then, the SHO should walk through each event that comprises the harassment complaint and obtain specific responses for each event. The SHO must provide the accused employee an opportunity to offer explanations, denials, defenses and potential witnesses and documentation for each event discussed.

Sample Questions

  • What is your typical workday or work week like? What time do you arrive? Leave? What are your typical responsibilities? Where is your work station located?
  • Do you supervise any employees? Who?
  • How would you characterize your working relationship with direct reports? Coworkers?
  • What is your relationship with [the alleged victim] like? How do you know him/her? How long?
  • [Tell the accused employee what misconduct is alleged or suspected.] What is your response to these allegations?
  • Did these things happen? What happened? When? Where?
  • How did [the alleged victim] respond? Did [he or she] indicate that your statements or actions were offensive? What did he or she say?
  • Did anyone witness these incidents?
  • Have you discussed or reported these incidents to anyone? Who?
  • Have you kept any notes or journals about these incidents?
  • [If the accused denies the allegations entirely:] Could another person have misunderstood your actions or statements? Do you think the allegations are made up? Why?
  • Have you ever used profane language in the workplace?
  • Have you ever used sexually explicit or suggestive language in the workplace?
  • Have you ever seen [the alleged victim] outside of work? Where? When?
  • Have you ever had a social relationship with [the alleged victim]? A romantic relationship? Have you ever asked [the alleged victim] out on a date? What was the response?
  • Have you ever been accused of workplace harassment? When? How was it resolved?
  • Have you ever received training on sexual harassment in the workplace? When?
  • Are you aware of the Mayor’s policy concerning sexual harassment? What is your understanding of the Mayor’s policy? How do you know about the policy?
  • Are there others you can think of who might have information about these allegations?
  • Do you know of any documents or other physical evidence I should be reviewing during the investigation? Were there any email communications?
  • Is there anything else you think I need to know for purposes of this investigation?

Closing the Interview

After the SHO completes their interview questions, the SHO should review their notes of the interview and make sure all aspects of the allegation have been covered and responded to. The SHO should remind the interviewee about the District’s anti-retaliation policies. Witnesses should also be asked to report any new information to the SHO immediately.

Alleged victims and alleged harassers must be advised of what to expect next. This includes informing them that they may be interviewed again if necessary.

Documenting the Interview

The investigator must document the interview after its conclusion. The investigator can complete documentation in one of two ways. If the interview is recorded (which is the best practice), the investigator can document the interview by creating a transcription of the audio. If the interview is not recorded, or transcription services are unavailable, the investigator can draft a “memo to file” summarizing what was asked, and what the witnesses said in the interview. (See Attachment 4: Sample Interview Summary).

Summaries are only useful if they are reliable. Therefore, it is vital that summaries be drafted immediately following the interview. If drafting the summary immediately is impractical, it must be drafted no more than 24 hours after the interview.

Interview documentation must include notes as to time and the length of any breaks or interruptions, who was present in the room, and copies of any handwritten notes. Handwritten notes must be signed and dated by the author.

Follow-Up Interviews

If credible and relevant information surfaces that implicates a previously interviewed witness, and that witness did not have an opportunity to provide comments or respond to that information, the SHO must conduct a follow-up interview.

If new accusations or defenses arise, the alleged victim and the alleged harasser(s) must have a fair opportunity to respond. Except when they are trivial, new developments of this nature require follow-up interviews of the necessary witnesses.

Step 6. Gather Documents and Physical Evidence

Throughout the interview process, the SHO may discover potential evidence. Evidence may include: emails, text messages, voice mail messages, letters, notes, journals, photographs, time and attendance records, building access records, video recordings, gifts, offensive objects, personnel records, policies, and other relevant items. The SHO must obtain evidence before, during and immediately following the interview process.

If a SHO requires assistance in obtaining evidence, he or she should consult agency General Counsel. If necessary, agency General Counsel may request e-mail, telephonic, and building access records from the Office of the Chief Technology Officer (OCTO) or Department of General Services (DGS). Moreover, agency General Counsel may be able to assist with securing other types of evidence, if needed.

Step 7. Evaluate the Evidence

Once the SHO has completed all interviews and obtained as much physical evidence as is available, the SHO must weigh the evidence and determine what happened based on the evidence. The SHO will need to evaluate the evidence by, for example, comparing and assessing statements made by witnesses (including assessing any information about witness credibility and reviewing witness statements for similarities and inconsistencies), reviewing the evidence for patterns and trends, and assessing the accuracy, completeness and reliability of documents and other physical evidence.

Standard of Proof. The SHO must decide what the facts are in any given investigation. A “fact” is an actual event or circumstance established by the evidence.

The standard applied is a “preponderance of the evidence.” This means, that the evidence shows, more likely than not, that an alleged event or circumstance occurred. It is not enough that alleged conduct could have occurred. Instead, the SHO must determine that it is more likely than not that the alleged conduct actually occurred. Otherwise, the SHO must deem an allegation unsubstantiated.

Assemble the Evidence

Before beginning the evaluation of evidence, the SHO should assemble the evidence into a logical order and label each item for easy reference in an appropriately indexed investigative file. At this stage, almost every piece of evidence should have been documented. Therefore, the easiest assembly is to arrange each document in chronological order, labeling each piece of evidence in sequence as Exhibit 1, 2, 3 and so forth. Since the investigation plan is updated to include all evidence as the investigation progresses, it should be an easy matter to simply number the evidence listed in the plan.

Be sure to use a common identification method for all documents. A good practice is to use the format of “Document Title, document type/author (Date).” A sample list of evidence might look like the following:

  1. Karen Connor Appointment to Deputy Director, SF-50 (April 1, 2012)
  2. Daniel Smith Appointment to Prog. Analyst, SF-50 (March 15, 2013)
  3. 2013 Performance Evaluation, Daniel Smith (4 rating) (Dec. 1, 2013)
  4. 2014 Performance Evaluation, Daniel Smith (5 rating) (Dec. 7, 2014)
  5. Party Tonight?, email message from Karen Connor to Daniel Smith, and his reply (Oct. 1, 2017)
  6. 2017 Performance Evaluation, Daniel Smith (2 rating) (Dec. 5, 2017)
  7. Interview of Daniel Smith, transcription (Jan. 10, 2018)
  8. Interview of Samuel Adams, transcription (Jan. 10, 2018)
  9. Interview of Karen Connor, transcription (Jan. 11, 2018)
  10. Interview of Jack Daniels, transcription (Jan 10, 2018)

Creditability

Sexual harassment investigations will invariably involve conflicting accounts of the same events. The SHO must consider each version of the facts and evaluate the credibility of competing evidence. When deciding the credibility of one version of events over another, the SHO should consider the factors below.

Creditability Considerations

  • Plausibility. Which version of the facts makes the most sense? Does one version defy logic or common sense?
  • Direct Knowledge. Did the witness see and hear the events they described, or does the witness rely on secondhand information? Secondhand information is typically less credible than firsthand knowledge.
  • Details. How general or specific is the evidence? Specific details, particularly when supported by other evidence, are usually more credible than vague and unsubstantiated allegations.
  • Corroboration. Are statements and other documents corroborated by other evidence?
  • Contradictions. Are the witnesses’ statements inherently consistent? If a witness’ statements are inherently inconsistent, then their statements may be less credible.
  • Omissions. Did any of the witnesses leave out details that they should have known/mentioned? If so, is the omission reasonable?
  • Prior Incidents. Has the alleged victim made similar complaints in the past about others? Does the accused employee have a documented history of this type of misconduct?
  • Motive. Do any of the witnesses have a motive to lie or exaggerate about the incident(s)? Do any of the witnesses have loyalty to or hold a grudge against any of the parties?
  • Credibility. Do any of the witnesses have a history within the workplace that affects their credibility?

Authenticity of Evidence

Issues of authenticity pertain to when a particular piece of evidence is not what it appears to be. Information that a piece of evidence was forged or altered would raise an issue as to its authenticity. Evidence collected from records, databases or other reliable sources such as official agency files can be presumed authentic unless there is a specific reason to believe otherwise. Key pieces of evidence should be authenticated by witness testimony if possible. For example, if an employee sends a note, ask that employee if they did indeed send the note and have them identify the note on the record. If issues of authenticity arise, they must be resolved.

Tell the Story with the Facts

After assembling and assessing all the evidence, the SHO is ready to determine and list each relevant fact in the case. For this purpose, a statement is “factual” if it describes an event or a thing in a manner that does not require substantial interpretation or characterization. Best practice is to list each individual fact that is needed to explain to someone who has no knowledge of the case, who the parties are, what happened, and why it matters. List the facts in a sequence that makes sense (e.g., chronologically) and in a manner that tells a compelling story of events. For each fact listed, the SHO must cite all evidentiary support for that fact.

At this phase, the SHO is not stating conclusions or opinions. However, if a witness disputes a fact, the SHO must weigh the competing evidence and decide which version is most credible and more likely than not to be true. For disputed facts, the SHO will list the disputed fact, citing all the evidentiary support. The SHO must also note that the fact was in dispute, how it was in dispute, and how the SHO resolved the factual dispute, if possible. For each statement explaining the resolution of a disputed fact, the SHO must cite evidentiary support.

As noted, for each fact listed, the SHO must cite to the pieces of evidence that establish that fact. Factual listings should be as concise as possible. Undisputed facts should be no more than one sentence. Disputed facts should be no more than three sentences.

Sample Factual Listing

  1. Ms. Karen Connor was initially appointed to the D.C. Department of Resource Development as a Deputy Director on May 10, 2012 (Ex. 1).
  2. Mr. Daniel Smith is a Program Analyst with the D.C. Department of Resource Development, who was appointed on March 15, 2013 (Ex. 2).
  3. Between 2013 and 2016, Mr. Smith was an excellent performer, receiving ratings of 4 or 5 out of 5 on his performance evaluations (Ex. 3, 4).
  4. On September 1, 2017, Ms. Connor asked Mr. Smith to report to her office. (Ex. 7).
  5. Within seconds of arriving in her office, Ms. Connors closed the door and started to share stories about her personal sex life (Ex. 7). For example, Ms. Connor informed Mr. Smith that she is a “swinger” (Ex. 7). She also shared that her husband has a girlfriend and she allows her son to watch pornography (Ex. 7).
  6. Mr. Smith informed Ms. Connor that this conversation was unwelcome and made him uncomfortable (Ex. 7).
  7. Over the next few weeks, Ms. Connor spoke about her sex life any time she encountered Mr. Smith in the office. (Ex. 7).
  8. On October 1, 2017, Ms. Connor sent Mr. Smith an email in which she requested Mr. Smith join her for a “swingers” party (Ex. 5).
  9. Mr. Smith declined the invitation to the party via email (Ex. 5).
  10. Over the next few weeks, Ms. Connor stopped by Mr. Smith’s office on multiple occasions to see if Mr. Smith would accompany her to a “swingers” party (Ex. 7).
  11. On December 3, 2017, Ms. Connor told Mr. Smith that his performance rating would be adversely impacted if he did not consent to attending a “swingers” party (Ex. 7). In her interview, Ms. Connor disputed that her invitation was for a “swingers” party (Ex. 9). However, during witness interviews, two employees, Mr. Adams and Mr. Daniels, stated that Ms. Connor verbally asked them, prior to sending the email, whether Mr. Smith might be interested in going to a “swinger” party with her (Ex. 8 and 10).
  12. On December 5, 2017, Ms. Connor issued Mr. Smith’s performance evaluation for 2017, rating him as “needing improvement,” or 2 out of a possible 5 (Ex. 6).
  13. Notwithstanding the performance rating, Mr. Smith was an outstanding performer in 2017 and should have received at least a rating of “excellent,” or 4 out of 5 (Ex. 3 and 4). Though Ms. Connor rated him as a 2, when pressed on specific performance criteria used in prior performance evaluations, Ms. Connor could not articulate why she rated Mr. Smith a 2 (Ex. 9). She further indicated that his performance in those areas was properly scored in the past (Ex. 9). Mr. Daniels and Mr. Adams provided similar statements about Mr. Smith’s previous performance and his reputation for being a top performing employee. (Ex. 8 and 10).
Importance of Sound Facts. The SHO’s listing of facts will later be relied upon by the agency Head or designee when issuing the Agency’s Notice of Findings and Conclusions in response to the sexual harassment complaint. The Agency will need to apply the SHO’s factual listing to the applicable standards found in Mayor’s Order 2017-313 to determine whether sexual harassment may or may not have occurred. Therefore, it is important for the SHO to identify all the evidence relied upon to support the facts listed and to apply the preponderance of the evidence standard appropriately when determining what is factual. Information deemed factual by the SHO but which is not adequately supported by the evidence or which the preponderance of the evidence indicates otherwise may be questioned by the Agency and result in a continuation of the investigation in order to clarify the facts.

Step 8. Document the Investigation

Having fully investigated the matter, evaluated the evidence and listed the facts pertaining to the allegation(s), the SHO must reduce the totality of the investigation into a written investigation report. The SHO is expected to issue an investigation report to the agency Head, or his or her designee, within 60 days after a claim is reported to the agency. It is recommended that each investigation report contain the elements listed below. A sample investigation report is attached for guidance.

Report Elements

  • Executive Summary. The executive summary provides a concise summary of the entire report. It should state why an investigation was conducted, and list the high-level facts revealed by the evidence.
  • Scope of the Investigation. This section outlines what the allegation was, how it came to the SHO, and the steps the SHO took to investigate the case. The steps taken should be a chronology of events within the investigation, including the date, time, and actions taken to further the investigation. List all of the witnesses interviewed, and the date and location of each interview in the chronology of events.
  • Documentary and Physical Evidence. This section lists all of the documents and other physical evidence collected in support of the investigation.
  • Allegations and List of Facts. This section lists the original allegations and the facts, as revealed from the evidence, relevant to each allegation.

Step 9. Next Steps After Reporting Outcome of Investigation

The SHO must share the investigation report with the agency head, or his or her designee, in order for the agency to issue its Notice of Findings and Conclusions. The SHO shall not provide the investigation report to the parties or witnesses involved in the investigation (nor to any other unauthorized party), as the investigation report is deliberative, may require additional work (as determined by the agency Head or designee), and does not constitute the agency’s official findings regarding the matter investigated. If the SHO is unable to complete the investigation report within the 60-day period, the SHO must immediately notify the agency General Counsel.

Following review of the investigation report and determination of next steps, the agency head, or designee, shall authorize additional investigation if necessary or issue the Agency’s Notice of Findings and Conclusions. The Agency’s Notice of Findings and Conclusions shall be provided to the Mayor’s Office of Legal Counsel (MOLC), the complainant, and the alleged harasser.

Based on the agency’s findings and conclusions, the agency head or designee may need to take additional steps with the assistance of the agency General Counsel and the internal HR department. At minimum, an agency should ensure that its employees are trained, and if needed re-trained, on the agency’s and District's sexual harassment or other policies. If an agency’s policy is vague or contains gaps that may lead to confusion around appropriate employee conduct or work-related expectations, the agency should update its policies accordingly.

When the agency concludes that misconduct has occurred, agency General Counsel should ensure that prompt administrative action is taken by the agency. Please note that an employee who is found to have engaged in inappropriate conduct who is not terminated must attend mandatory sexual harassment training within sixty (60) days of his or her receiving notice of the finding. This training must be in addition to any disciplinary actions and must occur even if the employee has already received sexual harassment training.

In addition to imposing discipline on the employee found to have engaged in misconduct, the agency may also have an obligation to report credible violations of the District’s Code of Conduct to the Board of Ethics and Government Accountability (BEGA). Such violations of the Code of Conduct may arise where the employee has engaged in ethical violations such as giving gifts to employees for sexual favors, bribing witnesses or potential reporters of sexual harassment, or using government resources to carry out the harassing behavior.


References

Legal Authorities

  1. Sexual Harassment Policy, Guidance and Procedures, Mayor’s Order 2017-313 (Dec. 18, 2017)
  2. Human Rights and Relations, Title 4 of the D.C. Municipal Regulations (see §§ 101 and 102.1(a))
  3. Corrective and Adverse Actions; Enforced Leave; and Grievances, Title 6-B, Chapter 16 of the D.C. Municipal Regulations
  4. Employee Conduct, Title 6-B, Chapter 18 of the D.C. Municipal Regulations

Applicability

The provisions of this issuance apply to all District agencies under the Mayor’s personnel authority.


Additional Information

For additional information concerning this issuance, please contact the Department of Human Resources, Sexual Harassment Officer Program Coordinator, by sending an e-mail to dchr.sho@dc.gov.


Attachments

  1. Attachment 1 - Mayor's Order 2017-313
  2. Attachment 2 - Sample Investigation Plan
  3. Attachment 3 - Investigation Plan Template
  4. Attachment 4 - Sample Interview Summary
  5. Attachment 5 - Investigation Report Template
  6. Attachment 6 - Sample Notification to Complainant-Alleged Harasser-Witnesses

Issued by Director Ventris C. Gibson, D.C. Department of Human Resources on Dec. 31, 2019, 1 p.m.