Checklist: Preventing Defamation During a Harassment Investigation

Follow these tips to avoid the risk of defamation liability:

• Never discuss a workplace harassment complaint with anyone who does not have a legitimate need to receive the information.
• Make sure that all discussions of the matter are in a private area and cannot be overheard.
• Do not send e-mail or leave voice mail that discloses details of a workplace harassment complaint or investigation.
• Do not seek information or make statements concerning the parties that go beyond the scope of the investigation.
• Caution the accused, accuser and witnesses of the risk of personal defamation liability if they make spiteful or untrue statements during an investigation or discuss the matter with others.
• Do not draw any conclusions about the matter before all the facts are in.
• Develop a complete and accurate written record of all investigative interviews. When possible, obtain written statements.
• Make sure that the final determination is solidly based on the facts. Never describe the conduct as worse than it was.
• Keep confidential all records concerning a harassment investigation. Records should be kept in a separate confidential file, not in the accused's personnel file.
• Do not broadcast the results of the investigation as an example to others or as a training tool.
• If HR determines that a harassment complaint has merit, do not refer to the harasser's conduct as "workplace harassment." Rather, refer to it as unprofessional or inappropriate conduct. That way, if there is a policy against inappropriate conduct in place, HR may take necessary disciplinary action and still avoid the battle of determining whether the behavior at issue amounts to the unlawful harassment.