Tips from the Other Side, Part 10
By Meghan Droste October 17, 2018
The idea of how to substantiate a claim of harassment is never far from my mind as a complainant-side attorney. I have to consider from the very beginning what evidence a potential client has and what evidence we are likely to develop during the course of an investigation and litigation. One of the most important considerations is credibility because harassment claims almost always come down, at least on some level, to a comparison of the victim’s statement to that of the alleged harasser. Who is a judge more likely to believe? If I do not believe a potential client, there is no chance I can convince a judge to believe that person.
Agencies should also be concerned about credibility determinations. One of the first things an agency should do after learning of a complaint of harassment is to investigate the allegation. The administrative investigation, which is different and separate from an investigation of a formal EEO complaint, is essential to determining what, if anything, happened and what the agency needs to do to address it. The investigation should also be the start of determining whether the complainant and the accused are credible. If the story of the alleged harasser doesn’t make sense, that is a huge red flag that you ignore at your own peril. Too often it seems like agencies are willing to dismiss an allegation simply because there are no other witnesses, even in the face of clearly questionable testimony from an alleged harasser.
How do we determine credibility? It’s not an exact science, even for veteran investigators and others who have significant training in evaluating testimony. The Commission has identified a few facts that agencies should consider. First, is the testimony believable? Does it make sense on its face? Second, how did the person act when giving his or her testimony? Does the witness display a demeanor that indicates that the testimony is true? Or is there something in the way the person responds to the questions that makes you question if he or she is lying? Third, does the witness have a motive to lie? The witness’s role in the incident, and her connection to the victim or the harasser, may make it more likely that the witness is not telling the truth. Fourth, is there any evidence, either other testimony or documentation, that corroborates the story? And fifth, does the accused individual have a past record of similar behavior? As the Commission notes, none of these factors alone are determinative. The lack of physical evidence or witnesses does not mean that an event did not occur. The fact that the accused employee has engaged in similar behavior in the past does not prove that harassment occurred this time. The agency should consider all of these factors as a whole.
No one expects you to be the next Sherlock Holmes. But you should be mindful of the evidence before you when determining the agency’s next steps.
Send questions or topics for future Tips from the Other Side column to Droste@FELTG.com.