April 16, 2018
Author: Lorman Education
I. Internal Investigations and EEOC Claims
A. Investigating Discrimination and Harassment Allegations Once an employee has filed a complaint of discrimination or harassment,
employers should immediately launch an investigation. It is crucial that ALL such complaints are investigated promptly, completely and objectively. Conducting prompt and thorough workplace investigations inspires the confidence and trust of good employees and may deter undesirable behavior from problem employees. Additionally, the best and most defensible employer actions are generally those that are predicated on solid, provable facts.
Reconstructing events can help identify necessary remedial measures to avoid similar problems in the future and thereby help avoid claims that could expose the employer to significant liability. The best chance for accurately reconstructing events occurs when those events are still fresh in the minds of witnesses (and perhaps before a witness has an opportunity to construct an alternate set of “facts” that better suits the witness’ self-interest).
1. Who Should Conduct Investigations
> The appropriate in-house manager or in-house attorney. The investigator, however, should not be a person who is too closely
connected with the matter being investigated (e.g. the alleged harasser), otherwise the investigation will lack credibility.
> Outside legal counsel, though use of counsel may have several undesirable consequences:
- Counsel’s notes and work product almost certainly will not be privileged.
- Counsel will probably become a fact witness and may be barred from representing the employer if a legal action ensues.
> An outside consultant with appropriate expertise.
- To ensure objectivity and a credible outcome, it may be preferable to use an outside investigator who does not have an ongoing relationship with the employer.
- Consider the investigator’s likely effectiveness as a witness in the event of litigation.
- An outside consultant is still the employer’s agent. Make sure the investigation is conducted to the employer’s standards and in accordance with legal requirements.
- Use of an outside consultant obviously has a cost associated with it, but depending on the circumstances, it is often money well spent.
2. How to Get Started
a. Secure Physical Evidence
> Preserve any evidence involved in the investigation.
> Secure documents or electronic information that may be relevant to the investigation (e.g. pornographic pictures that are the subject of a harassment claim; the offending email or note).
b. Assess the Scope of the Investigation
> Identify likely witnesses who will need to be interviewed.
> Identify issues that need to be explored and frame appropriate questions.
> Never pre-judge where an investigation might lead you.
> Try not to underestimate the magnitude of the potential problem.
> Interview all persons who are identified as possibly having knowledge of any matter relevant to the investigation. Plan on interviewing key witnesses first, followed by secondary witnesses.
3. How to Interview a Complaining Party
> Take the complaint seriously, even if the complainant is a chronic complainer or if the behavior complained of does not initially seem like harassment or discrimination.
- If the employee quits because he or she has come away with the impression that the employer did not take the complaint seriously,
the employer could face a wrongful discharge lawsuit. Show the employee that the complaint is taken seriously by listening attentively and refraining from comments like "You're overreacting -- I'm sure he didn't mean anything by it."
> Presenting the employee with a copy of the relevant personnel policy (e.g. sexual harassment prohibition) also helps demonstrate that the employer takes the matter seriously.
> Set a professional tone for the interview and try to put the complainant at ease.
> Acknowledge that bringing a complaint is a difficult thing to do and that it is normal for the employee to feel uncomfortable.
> However, do not get caught up in the emotions of the moment. Maintain a professional attitude.
> Gather facts, do not make judgments.
- When hearing the initial complaint, it is not the investigator's job to determine whether the complaint is valid. The only job at hand is
to gather the facts necessary to start an investigation into the allegations.
- Be careful not to say anything judgmental like, "Most people would take that as a compliment" or "Don’t you think your own behavior provoked your co-worker?”
> Get answers to: "who, what, when, where, why and how."
- Start with asking the basic journalism questions of who did what to whom, when, where, how and why.
- Other important questions sometimes are: Is the employee afraid of retaliation? What does the employee want to happen to
resolve the problem?
> If possible, get the complainant to write a full account of the incidents and witnesses in their own words and writing.
> Elicit specific details regarding the alleged misconduct. Include questions regarding the type of conduct, the frequency of the occurrence,
what was said or done, where it occurred, the dates that the conduct occurred, and the time period over which the conduct occurred.
> Find out whether there is a pattern of previous episodes or whether the complainant is aware of similar behavior by the accused toward another employee.
> Get the specific context in which the conduct occurred, including the nature and general description of the work area and the specific location. Did the conduct occur at a work-related function, during working time, or after hours?
> Ask the complainant to identify all witnesses or anyone who might have knowledge of any facts bearing on the investigation.
> Determine the effect of the conduct on the complainant. Identify the type(s) of effects (for example, economic, non-economic and/or
- If the complaint is of harassment, was the conduct received as a joke? Was it unwelcome? Did it embarrass, frighten or humiliate
- Often, complainants contend that, while they may have voluntarily given in to the demands made of them, they did so out of fear or
because they felt threatened. It is important to remember, however, that the real issue is not whether the behavior was voluntary or involuntary, but whether it was unwelcome.
> Determine whether persons of a different sex, race, religion, etc. from the complainant were subjected to similar conduct or were treated differently by the alleged harasser.
> Determine the timing between the occurrence of the alleged conduct and the time when the complainant made the report.
- If there was a time lag between the occurrence and the report, find out why the complainant waited so long before reporting the
situation. A plausible explanation may be the employee's fear of retaliation.
> Find out what the complainant wants.
- How does the complainant want the situation resolved?
- Can the complainant continue to work for or with the accused?
- Can the complainant be productive?
- Will it be embarrassing or awkward for the complainant?
- Does the complainant need counseling?
> Explain to the complainant that the charges are taken seriously, that the employer will conduct a thorough investigation before reaching any conclusions, and that he or she will not be retaliated against for making the complaint.
> Make no statements about the accused's character, job performance, or personal life. If the accused were to sue for defamation, this might be enough evidence for a finding of malice. Malice nullifies the "qualified privilege" employers have to discuss internally these kinds of situations without incurring liability.
4. How to Interview a Party Accused of Misconduct
> Obtain a statement from the accused.
> Identify the relationship of the accused to the complainant. Was the accused an agent of the employer, a supervisory employee, a co-worker or a non-employee?
> If the claim is of harassment, was there any prior consensual relationship between the parties? How long have the parties known each other? Is there a history of group or individual socializing?
> If the accused is a supervisor, indicate the individual's job title, obtain a copy of the individual's job description, and determine the individual's specific duties at the time of the alleged incident.
> Determine whether the accused had authority to take tangible employment actions (authority to effect significant change in employment
status such as hiring, firing, promotion, reassignment or change in benefits) against the complainant.
> You can expect the accused to deny the charges.
- Observe the reaction. Note whether there is surprise, anger ordisbelief.
- Describe the details of the allegation and note the areas of disagreement between the version of events offered by each party.
- If the accused denies the allegations, probe further to determine the background, reasons, and motivation that could possibly trigger the complaint.
> Ask the accused to identify all witnesses or anyone who might have knowledge of any facts bearing on the investigation.
5. How to Interview the Supervisor of the Accused and the Complainant
> Talk with the supervisor of both the complainant and the accused to learn about any behavior patterns on the part of the accused or the
complainant and to determine whether the supervisor had any knowledge of the relationship between the parties.
> Did the complainant report the conduct to the supervisor? If so, when was it first reported?
> Was the supervisor in a position to observe the conduct?
> Was the conduct discussed in the presence of the supervisor or were there any rumors circulating? Should the supervisor have been alerted to the conduct?
> What is the performance and disciplinary history of both the complainant and the accused? Review documentation of this history.
> Determine whether there is any available documentation (letters, e-mails, memoranda, reports, statements, etc.) that would support the conclusion that the supervisor knew or had reason to know of the conduct.
6. How to Interview Disinterested Witnesses
> Obtain verbal statements from any witnesses who support or deny any of the complainant's allegations. Confirm in writing, if practical. This evidence is very critical to the investigation. Absent this, it is simply the complainant's word against that of the accused. Be aware that witnesses are often reluctant to come forward out of fear of reprisal, or may offer yet a third version of an event.
> Focus on what the witness saw or heard; dates and times; the perspective from which the witness observed the incident in question.
> Assure all witnesses that their cooperation is important, their testimony is confidential, and that they will not be retaliated against for providing truthful information.
7. How to Document the Investigation
> Document all witnesses interviewed.
> Thoroughly document what each witness says.
- Consider whether to have each witness prepare a statement or sign one prepared by the investigator.
- Refrain from stating judgments, opinions or conclusions in your witness notes.
> Recognize from the outset that documentation of the investigation is discoverable in litigation.
- Proof that the investigation occurred as well as the fairness and thoroughness of the investigation.
- Proof of what was said by witnesses.
> Document all remedial actions taken as a result of the investigation.
> All notes and documents prepared should be dated, and should note the position and full printed name of the person by whom they were prepared.
8. How to Preserve the Confidentiality of an Investigation
> While it is not possible to ensure complete confidentiality, keep the investigation and the facts that it uncovers under a strict "need to know" basis as much as possible.
> Emphasize to all those involved in the investigation, including the complainant, the accused and witnesses, the need to keep discussions strictly confidential. Back up these instructions with warnings of discipline, if necessary.
> Limit the number of persons in the organization who have access to the information.
> Do not unnecessarily disclose information to witnesses. For example, instead of asking "Did you see Paul touch Joan?" ask "Have you seen anyone touch Joan at work in a way that might seem inappropriate to you or might make her uncomfortable?"
> The purpose of the investigation is to gather facts, not disseminate allegations.
> To avoid defamation liability, never broadcast the facts of a given situation or the results as an example to others or as a training tool.
9. How to Bring Closure to an Investigation
> At direction of counsel, prepare a summary and conclusions regarding the investigation.
- Send a report to counsel (may shield report from discovery as attorney-client communication).
> With input from legal counsel, reach conclusions based on the investigation.
- Did harassment or discrimination occur? If so, what remedial action is necessary and appropriate?
- Prepare a detailed chronology. Analyze whether there might have been certain events that triggered the complaint such as a denial
of promotion, pay raise, or transfer.
- Determine whether there were any possible motives on the part of the complainant.
> Have you been able to confirm any unlawful harassment or discrimination through the investigation? If so, determine the
appropriate remedial action and implement it.
- Discipline or terminate the employee who committed the misconduct.
- An employer does not have to select the remedial action the complaining employee prefers.
- Remedial action merely needs to be effective; it does not need to be punitive.
- The complaining employee should not experience any negative consequences as part of the remedial action (e.g. transferring the victim to separate him/her from the harasser).
> If the complaint is not corroborated, you should nevertheless seize the opportunity to reinforce the employer’s anti-harassment or antidiscrimination policy for all involved.
> Make it clear to all involved that retaliation as a result of a complaint of harassment or discrimination will not be tolerated and will result in disciplinary action up to and including termination.
> Document all communications that bring closure to the investigation.
10. How to Resolve Difficult or Special Situations
a. What should an employer look for if there are no witnesses to the alleged harassment? What if it is one employee's word against another's?
> Harassment, or other misconduct, often happens in private with no witnesses. The resolution of such a claim often depends upon the
credibility of the parties.
> Misconduct may be found solely on the credibility of the victim's description of what happened.
> The account of the conduct must be sufficiently detailed and internally consistent to be believable.
> Lack of supporting evidence, where such evidence should exist, could undermine the allegation.
> A general denial by the alleged harasser will carry little weight when other supporting evidence exists.
> An investigator should look for surrounding evidence to support or disprove a harassment or discrimination claim.
- Do co-workers have any knowledge of the conduct, or any background or history between the parties that would shed light on the incident?
- Did anyone observe the employee's behavior shortly before or after the alleged incident?
- Did the employee discuss the matter with another person such as a counselor, doctor or close friend?
- Did anyone notice any change in behavior of either employee at work or in the way that the alleged wrongdoer treated the complainant?
- Were other employees treated in a similar manner by the alleged harasser?
b. What if the employer cannot determine whether misconduct occurred?
> There may be cases where it is impossible to tell what really happened. It may be a case of one employee's word against another's. What can management do? There are still some steps that can be taken, even if it cannot be proven that harassment or other misconduct actually took place.
> At the very least, management can reemphasize to all parties involved in the complaint the employer's prohibition of unwelcome sexual conduct, other forms of unlawful harassment and discrimination in the workplace. The employer should also document that a complaint was received and an investigation took place, but it could not be determined if unlawful conduct occurred.
> The complaining employee might be asked for further evidence.
- If no more evidence can be found, the complaining employee should be reassured that his or her employment conditions will not be adversely affected by the complaint.
- Finally, the complaining employee should be told that the employer is committed to a workplace free of discrimination and
harassment, and that any subsequent incidents should be immediately reported to management.