“If True”: How to Assess Credibility in Sexual Harassment Investigations

“If these allegations are true” has been the most hotly debated qualifier used by politicians recently in reaction to all of the sexual misconduct accusations in the news.

While many politicians use the phrase out of cowardice to avoid taking an actual stand on an important issue, there is an underlying point: it is a necessity to determine credibility when someone has been accused of sexual misconduct.

Having conducted sexual harassment investigations many times during the last 25 years, I’ve often been required to determine if a victim is telling the truth or whether the accused is believable. Juries have to do the same thing.

Even if the case never goes to trial, employers have to make decisions about the right steps to take when a man (and yes, it is almost always a man) is accused of being sexually inappropriate in the workplace. The company looks to me for guidance on that decision if I am conducting the investigation or if I’m defending the employer when a claim of sexual harassment has been brought.

The first step in determining “if true” is to believe the accuser. I know that irks some people, but I have experienced too many situations where the boss’s first reaction is to tell the victim, “Don’t worry about him, Honey. That’s just the way he is. It doesn’t mean anything.”

That is an actual quote from a sexual harassment case that I handled, but I have heard variations of that speech dozens of times in my legal career. If that is the employer’s attitude, the company has already made a credibility determination without investigation—the woman is unworthy of being taken seriously after she got up the courage to complain.

Remember that believing the victim is only the first step in the process, not the end of it. That step should be followed by a prompt, fair and thorough investigation conducted by someone who does not have a horse in the race.

A sexual harassment investigation should involve interviewing the victim, any witnesses and the accused, and also reviewing documents, policies and other proof, which usually includes pictures, emails, texts, phone records, internet searches, calendars, greeting cards, and recordings.

When I am doing an investigation, I have to make a judgment about whether each witness is believable. So, my questions don’t just center on the alleged events, but also on motivations, timing, relationships and track records.

Here’s what I look at in determining whether the person I am talking to is believable:

  • What is the witness’s demeanor: How does the witness present the facts? How did the witness react to my questions? What is his/her body language telling me?
  • Is there corroboration for this witness’s story: Are there other witnesses who verify this story? Does the physical evidence support it? Are the corroborating documents contemporaneous with the incidents they describe?
  • What is the chronology: Does this witness’s timing of the events match other witnesses’ stories? How does this witness’s timeline compare to the documents—calendars, e-mails, phone records, etc.? How long did it take for these allegations to be raised?
  • Is the story consistent: Has this witness’s story changed prior to or during the investigation? Are the answers vague or evasive? If the witness claims to have evidence to support his/her story, does he/she produce that evidence without hesitation and is the evidence supportive?
  • Does this witness have a relevant history: Has this witness been involved in questionable behavior in the past? Is this witness a close friend or a sworn enemy of the accused or the accuser? Is there an economic gain to testifying a particular way? Does the witness have other motivations to fabricate?
  • Is this story logically plausible: In light of the evidence, logic and circumstances, does critical thinking tell me that witness’s story is plausible? Will the witness sign a sworn statement memorializing his/her story?

Every lawyer is a skeptic. We have beliefs, but we treat them as theories to be tested and then we refine or change them based on evidence. At the end of a thorough sexual harassment investigation, I’m usually very confident that I have gotten to the truth of the matter.

But because of what I do for a living, I get asked frequently these questions about sexual misconduct in the workplace by people who are skeptical of sexual harassment claims in general:

  • Don’t many women lie about their allegations? In my experience, less than 5% of the situations I’ve handled have been completely fabricated.
  • Aren’t most situations just “he said/she said”? Rarely have I investigated an incident where I didn’t find some other witness or evidence that helped prove or disprove the allegations with more clarity.
  • So, any woman who is gunning for a man’s job can just make a sexual harassment allegation? The accused gets fired less than 20% of the time in my experience, usually only in the most egregious cases. Many times, a workplace harassment situation can be resolved with an apology, coaching, retraining, a transfer, or other remedial actions.
  • Won’t all of this talk in the media mean that men will be more vulnerable in the workplace? Yes, as to the men who behave inappropriately, but not the men who treat female coworkers with respect, who are happy for women to succeed, who don’t think for a second that their female coworkers or subordinates are “hot” for them, and who know how to act professionally at all times. My experience tells me that the majority of men fall into that latter category.

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