How to Investigate a Sexual Harassment Allegation

How to Investigate a Sexual Harassment Allegation

Seven steps to take when an allegation arises—and when outside help may prove wisest.

By William R. Thetford Jr. Esq. and H. Robert Showers Esq.

Every church should have a carefully crafted and legally sound policy to address sexual harassment. Such a policy can help guide and protect the church in case an accusation of harassment by an employee surfaces. It can also help prevent abuse from taking place at all.

Once you have a policy in place, your church is in a much better position, both in terms of fostering a healthy workplace culture and in maintaining a sound legal position. However, should an allegation arise, your church must stand ready to follow the policy and shrewdly respond. Use the following seven steps to conduct a proper investigation for your church.

1. How to receive complaints

First, church leaders must be receptive to receiving a complaint. Do not treat a complaint as a nuisance created by the reporter. Along the same lines, do not promise punishment for the accused until you have investigated the allegation. In other words, it is important that the church treats the complainant and all parties involved with respect. While it is too early in the process to promise a result (dismissal or exoneration of the alleged offender, and so on), it is important that you take this matter seriously and assure everyone that a full and fair investigation will be undertaken.

Before further discussing the investigative process, it is important to note here that not all complaints are made through a formal channel. Sometimes they are given informally. Churches still must be vigilant to understand when this is happening and direct this situation into the proper channels. For instance, if an employer is made aware of sexual harassment, either through informal conversation with an employee or through observing this behavior directly, the employer should begin to take action. If no action is taken, courts will likely find that the employer “knew or should have known” about the problem and may impose liability on the employer. In such a situation, the employer should probably respond by seeking to establish a formal complaint and have the known victims or witnesses to record their accounts in writing. Likewise, if you have a sexual harassment policy and the employee/victim does not report an alleged incident, then the church will be able to raise a defense if a lawsuit is later filed.

Once a complaint is received, whether formally or informally, the church may need to do an initial evaluation to determine the scope of the upcoming investigation and see if there are any interim remedial steps that need to occur pending the outcome of the investigation. For instance, it is generally inappropriate to have the alleged offender continue to maintain direct oversight over the complainant. In fact, it may be wise—if probable cause exists—to put the alleged offender on paid administrative leave pending the results of the investigation. (For a definition of “probable cause,” please see the related article “Seven Steps for Creating an Effective Sexual Harassment Policy.”) There may be other instances in which the complainant should be offered paid administrative leave, too. Whatever the case may be, church leaders must make certain any remedial steps they take are not actual—or perceived—retaliatory measures against the complaining employee, nor actual or perceived steps taken to retaliate or punish alleged offenders before the evidence has been fully considered. Fairness and respect to all parties must be emphasized in order to build trust and transparency on all levels.

2. Other early steps

At the beginning stages, if your church has liability insurance, review your policy. Should you want to make a claim, your church needs to know what must be done—and when—with the insurer to ensure it maintains coverage.

Also, your church should take time early on to explain the process of the investigation to the appropriate stakeholders (e.g., the church board, church members, and other leadership), and decide how the findings will be distributed. Help both the victim and the alleged perpetrator know that you will conduct an objective and professional investigation, and what they should expect throughout the process.

3. Choosing an investigator

In accordance with your sexual harassment policy, your church will need to take prompt action. The first major decision you will have to decide is who will handle the complaint. There are essentially three options available to conduct the investigation:

• do it internally;
• hire an independent outside group that is not a law firm; or
• hire an independent law firm.

Some minor complaints can be handled internally. However, sexual harassment is a sensitive subject and has the potential to become a highly charged issue with long-term ramifications for your church. Moreover, conducting the investigation internally may subject your church to real or perceived bias that may taint the process. Any decision to conduct an internal investigation must be made with caution.

For most serious allegations or for allegations involving church leadership, you will want to choose an independent agency to conduct the investigation. This may be more costly initially, but it may save your church’s reputation, resources, and morale, if done right.

We do not recommend independent outside groups that are not law firms. An independent investigation by legal counsel experienced in sexual harassment complaints is prudent for three reasons, especially if there is a chance that the issue may result in a lawsuit or legal liability:

• Communications with legal counsel regarding the matter will be protected by attorney-client privilege or the standards of confidentiality that law firms are obligated to follow.
• While a thorough investigation made in good faith can prevent the church from being held legally responsible for the acts of the offender, a poorly handled investigation can leave the church on the hook. In some states, an employer with good intentions even can be liable for the malicious acts of its employees if the employer conducts a negligent investigation and takes action on that errant basis. (For more information on an employer’s liability for taking disciplinary action on a negligent investigation, see Vasquez v. Empress Ambulance Serv., 835 F.3d 267, 269 (2d Cir. 2016)). Similarly, a negligent investigation is not likely to protect a church which fails to take appropriate action. Moreover, beware that a grossly negligent investigation done in-house can bring potential liability as well.
• Some third-party investigation firms have been known to endlessly investigate, needlessly expending resources and taking months, if not years, to conclude. Such a scenario puts the church in the difficult position of deciding whether to continue the investigation until its resources are exhausted or to fire the investigators, a move outsiders may perceive to be an attempted cover-up and breach of trust. Moreover, the alleged victims and perpetrators are indefinitely left in limbo. Speed can be as important as completion in any sexual harassment investigation.

Caution. Do not allow alleged victims or outside victim advocacy groups to pressure the church, through social media or otherwise, into conducting a one-sided investigation or into hiring an investigator who is not objective and trying to find the truth regardless of where it leads.

Whether the investigation exonerates or finds wrongdoing on the part of the alleged offender, the stakes are high. Liability can result both in failing to protect a victim or defaming someone who was innocent. A law firm skilled in sexual harassment investigations can minimize and overcome numerous challenges such as the ones described above.

Good questions to ask legal counsel early on include:

• What statements do we make to the employees?
• What should we say to the complainant?
• How should we communicate with the alleged wrongdoer?
• How should we handle the media if our church is approached by reporters? How do we handle social media?

4. Conducting the investigation, gathering documentation

When investigating the accusations, the investigator, whether in-house or third-party, should interview both the victim and the accused. The investigator will try to corroborate the claims of the witnesses with other evidence (including other witnesses) to try to verify what really happened. After reviewing this new evidence, the investigator may need to re-interview the reporter and/or the accused.

How to address the individual who has reported the harassment is a sensitive subject. It is important to get to the bottom of what happened so that appropriate action can be taken. However, as stated earlier, the victim should be treated with respect, not harshness.

All findings should be documented, with an awareness that what is written down could end up in court. As you go through the investigative process, your primary concern is to understand what happened and how to respond. However, you should also seek to learn how this happened and what steps can be taken to prevent this situation from arising again in the future.

5. Take reasonable action

As a result of the investigation, the employer must take reasonable action. However, determining reasonable action depends upon the level of proof the church requires—a standard that should be considered and established with its sexual harassment policy long before a problem ever occurs. For specific information and guidance on choosing a level of proof, see the “Standard of evaluation” section in our policy article.

If the investigation determines the offender is guilty of serious wrongdoing, formal discipline or potential job termination is warranted. If termination is contemplated, though, it is important the employee received notice that sexual misconduct could lead to that result. This means it is essential that your church’s sexual harassment policy states termination is a possible consequence. It is also essential all employees acknowledge the policy to demonstrate they received notice of this possible outcome in light of a violation.

Of course, if the investigation reveals sexual harassment did not occur, then this finding should also be reported to all parties involved. However, it is important not to let such an outcome create a perception in the church that future allegations should not be brought forward.

6. Communicate the results prudently with legal guidance

This step is increasingly important since employers are more highly scrutinized by the public in the seemingly ever-expanding world of social media, including the #MeToo and #ChurchToo movements. Honesty, trust, and transparency are virtues, but so is discretion. There is no requirement that all information must be revealed to the public and all parties. In fact, doing so could destroy attorney-client privilege, result in defamation lawsuits, and either start or exacerbate a negative public relations war. Do not give in to public pressure or social media in communicating something that you will later regret. Be wise in the dissemination of information and/or statements made to the public (social media included).

This step is another critical juncture to seek out legal counsel as the best course of action will vary greatly based on the specific situation. Typically, the final report containing the full findings of the investigation is kept by the employer and the parties are only given a written summary of the findings and results. If appropriate, another statement can be issued to the congregation or others who may have reason to know. Public statements are particularly problematic since potential defamation, intentional infliction of emotional distress, and other causes of legal action may flow from thoughtless and unwise releases of information. Telling the truth is important—but do it wisely and with counsel from experienced professionals.

7. Follow up

Just because the investigation is concluded (and, if warranted, an appropriate measure of discipline is applied) does not mean that everything goes back to the way it previously was.

The church must not allow any retaliation against the complainant for making a good-faith complaint. It would be wise for the church also to periodically check in with the victim to ensure that the situation improves and that no retaliation has occurred. If the offender was disciplined short of termination and warned not to repeat his or her behavior, the church also must ensure that the individual complies. Conversely, if the investigation reveals the alleged victim was using the sexual harassment allegation as a tool to distract from poor performance or to settle a score, it is just as important to make certain that issue gets resolved for the sake of fairness and transparency.

Further, it will be important to document the steps that your church took during the investigation and the result of it. Usually, the best practice is to prepare a short, written report. If you have hired legal counsel to assist in this matter, this document can be protected as attorney work product, except for the conclusions and discipline.

Handling historical investigations

Historical investigations of sexual harassment are much more difficult to address compared with ones investigating the recent past. These types of situations have garnered significant media attention recently. A prime example is the allegations made against Justice Brett Kavanaugh during his confirmation hearings for the US Supreme Court. Other examples include years-old and decades-old sexual misconduct allegations arising within the Catholic Church, the Southern Baptist Church, and Penn State University. Memories can fade over the years and it may be difficult to locate the relevant witnesses, documents, or other evidence.

Many of the investigation principles discussed above and the policy recommendations given in this article will apply to historical investigations, but it may take more digging in order to reach the truth of what occurred. When your church does reach a conclusion, you may find that it is a bit hazier than an investigation of a recent event. One of the keys will be corroborating evidence. Often, documentary evidence, which can be critical in corroboration, may be more difficult to find the longer the time period between the sexual harassment event and investigation. It initially may be the word of one person against the other, but if you can independently confirm or contradict the details of the testimony you receive, you may be able to get a better picture of who is telling the truth, what was forgotten, and what really happened. It may be a complicated interconnected puzzle where one piece can help lead to another to get the whole clear picture.

This article is an adaptation of previous Simms Showers content from “Sexual Misconduct Part II: Policies and Investigations,” and “How Churches and Nonprofits Should Address Sexual Harassment in the #MeToo Era” that has been republished on Christianity Today’s Church Law & Tax.  

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Will Thetford at wrt@simmsshowerslaw.com for legal advice that will meet your specific needs.