Who’s telling the Truth in “He said, She said” Harassment Complaints

In many harassment complaint cases, there are no witnesses and an investigator is left with the statements of harassment from the complainant and the denial from the alleged harasser. When there are conflicting versions of events, an investigator must review relevant factors to help determine who may be telling the truth. It is important for an investigator to make a conclusion about the allegations and decide whether there was a violation of the company’s harassment policy occurred and recommend corrective action to address the violation and/or prevent violations in the future. Fortunately, the Equal Employment Opportunity Commission (EEOC) provides several factors that can be used by investigators to assess the credibility of employees (or others) involved in a complaint or grievance.  It is important to remember that the investigation is trying to determine the facts by a preponderance of the evidence (more likely than not), and not beyond a reasonable doubt.  If the primary evidence is the testimony of the victim (no witnesses), and the alleged harasser denies the allegations – the investigator can ensure that he/she fairly and independently reviews the complaint and respects the right of the harasser to be confronted with the allegations.  Examine the following factors, while at the same time look for signs that a witness may be lying, exaggerating or being deceptive.

Evaluating Credibility

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Does the person seem to be telling the truth or lying?
  • Motive to falsify: Does the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Does the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again. EEOC Guidance.

Interview, not Interrogation

Your investigation should involve interviews, not interrogations.  Interviews are taken with willing witnesses, who are prepared to tell you what they know.  For reluctant witnesses, build rapport by (1) asking general open-ended questions; (2) explaining the advantages of cooperation; (3) outlining necessity to cooperate; (4) empathizing and be non-judgmental; and (5) let them explain their side of the story.

How to Spot Deception (American Psychological Association)

  • Encourage interviewees to talk while an interviewer slowly reveals evidence.
  • Consider initially withholding some evidence until later in the interview, to give the person a chance to either not answer, or blatantly lie about something.
  • Encourage a witness to say more during their interviews.
  • Ask a witness to tell their story in reverse order.
  • Ask unexpected questions in the interview – surprise questions can leave them floundering for a response or contradicting themselves.
  • A liar may use more single-syllable words, repeat particular words or use words that convey uncertainty, such as “might” instead of “will.” (Read more)

Misconceptions about Lying (Not necessarily signs of Lying)

  • Crossing arms
  • Lack eye contact, looking away, shifting eyes
  • Movement (fidgeting, scratching, picking hands, tapping foot)
  • Sweating or nervousness
  • Ums, ahhs – filling pauses

Clues to Spot Liars: an ABA article offered ways to spot liars (from Cynthia R. Cohen, Ph.D)

  • Affect (change in demeanor) differs than normal baseline
  • Smiles inconsistent with emotion; micro expressions revealing inappropriate emotions
  • Outward signs of fear or guilt – such as higher pitch, faster/louder speech, speech errors, indirect
    speech
  • Gesture slips (e.g., shoulder shrugs)
  • Shifting eyes if linked to other signs
  • Length of answers, details
  • Can’t tell the story backward
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