Two people were alone in a room, where one reportedly experienced unwelcome conduct – perhaps a kiss, a grope, a sexual assault, or even a rape – and the other denies, or is expected to deny, the conduct.   There were no video cameras, and nothing was recorded on an electronic device.  Organizations will often describe these situations to me as “he said, she said” complaints, and query how we can “prove” what happened or know who is “lying.”

As a workplace investigator, I am not looking to “prove” anything, nor am I necessarily ferreting out “truth” from “lies.”  Rather, my role is to assess each party’s credibility and determine what I find more likely than not to have occurred.  This does not involve lie detector tests.  It does not turn on which party visibly and audibly presents as more credible.

Credibility is instead assessed based on a range of factors, including:

• whether the party’s account is inherently plausible and logistically possible;
• whether other information provided by the party, of actions or events outside of whatever occurred in that room, has been corroborated;
• the party’s motive to present a particular account – what this individual stands to gain or lose by sharing this account at this time; and
• what information the party shared with others more contemporaneously with regard to what occurred.

Very often, including in some notably challenging and sensitive investigations that I have conducted, the most compelling factor in my analysis has been that last one – the contemporaneous accounts that one or both parties shared with others, what some may dismiss as “hearsay.”

“Hearsay” Is Not a Bad Word

The legal definition of “hearsay” is testimony given by a witness who relates, not what the witness knows personally, but what others have told the witness, or what the witness has heard said by others.  Thanks to portrayals of courtroom situations on television, in the movies, and on the stage, most adults have some familiarity with the term.  They often in my experience perceive hearsay as being bad, unreliable, or an invalid source of information in the context of a workplace investigation.  “I am only going to tell you what I saw/heard, because all the rest is hearsay” an employee will tell me.  “All I know is hearsay,” will be the explanation proffered by someone else, who will then become silent, awaiting my response.

When I receive these references to “hearsay,” I encourage the individuals to clarify what they personally witnessed – what they saw, heard, or felt.  Also, I encourage them to share with me that which was told to them by others.  This “hearsay” is not a bad thing; it can be a starting point to more information.

My interview never simply ends with the hearsay account.  I ask follow-up questions to clarify the context in which the information was obtained.  I want to know if it was a second, third, or fourth-hand account, or if it was sheer rumor attributable to no specific source.  I want to know when the information was recounted, what prompted the person to share it, and how it was received.  I also want to know what else was shared in that same conversation.

When the information was not conveyed directly by the person who experienced the behavior, I will endeavor to trace it back to the initial recipient, asking similar questions in each successive interview.  I compare variations in the accounts I receive from multiple sources, and analyze all the contextual details, as well as other credibility factors, to determine the reliability of the information.

In other words, a lot of additional work goes into the consideration of a “hearsay” account.  It is never taken as automatically true and accurate, but neither is it summarily dismissed.

Hearsay in the Absence of Witnesses

Aside from the accounts of the complainant and respondent, hearsay often is the only source of information I have when considering the situation of what transpired between two people alone in a confined space.  If either or both parties shared with colleagues, a supervisor, a friend, or a trusted advisor an account of what transpired in that confined space, gathering those second-hand accounts can be relevant and immensely helpful to determine what more likely than not occurred.

Consider Employee A who, two years ago, recounted an uncomfortable exchange at work to a colleague.  Perhaps Employee A even mentioned the exchange to a supervisor, but the supervisor took no action and did not report it – at Employee A’s request.  The incident only came to HR’s attention much more recently, prompting a workplace investigation.  If the account Employee A provides now is consistent with what the coworker and the supervisor both say that Employee A disclosed to them back around the time of the incident, those second-hand accounts can be compelling support for Employee A’s report of events.

With that type of delayed reporting of an incident, I will start with all my questions about what was recounted, when, and to whom, and analyze how that differs from other accounts I have received. I also want to explore why no one took further action at the time the incident was first recounted or in the intervening weeks, months or years.  I want to understand how and why the matter has come to light now – whether Employee A or someone else recently came forward and what prompted that, or whether an independent factor (like a coincidental review of emails on an unrelated issue) had prompted further inquiry.

I need to gather and analyze all that context, and compare it to all the information gathered from the respondent party and individuals to whom the respondent may have shared details about what occurred, before making conclusions as to what I think more likely than not happened between those two people when they were alone in a confined space.  I will not know the “truth,” but with sufficient diligence and analysis, what starts as “hearsay” can provide reasonable and even a compelling basis to credit one party’s account over that of another.

By Tracey I. Levy