If you are an employer or HR professional and have not had to conduct a workplace discrimination investigation, consider yourself lucky, or possibly naïve. At some point every employer will be confronted with the employee who, rightly or wrongly, claims discriminatory treatment. The law obligates you to investigate. Here is a top-10 list of workplace investigation pointers to help make sure you do it right and minimize exposure for your company.
1. Have a Clear Anti-Discrimination Policy
The best investigation starts long before any actual investigation, with a clear anti-discrimination policy that your employees understand and can access easily. Ideally such a policy will include clear definitions of what constitutes illegal discrimination, will state clearly that the employer does not tolerate such conduct, and will give employees clear directions on how to report such discrimination and what can be expected when a complaint is made.
2. Know What You’re Looking For
Familiarize yourself with what does and does not constitute illegal discrimination. For example, employees often use the term “harassment” to describe personality conflicts as well as genuine discriminatory behavior—such as a grumpy supervisor who yells at everyone vs. an employee who uses derogatory language directed at a co-worker’s gender, religion or ethnicity. On the other hand, employees can also be vague in describing conduct that, based on their description, appears benign but very well may be discriminatory.
3. Know What Constitutes a Complaint
Complaints are easy to identify when they come neatly packaged in an email or other written correspondence that says Complaint of Discrimination, or a supervisor notifies you of observed misconduct. But keep in mind that there are no magic words necessary to qualify any statement as a complaint. Despite the most clearly worded policies and procedures, employees will often “complain” in less formal ways. Either way, you should recognize when a complaint is being made and respond accordingly.
4. Have a Plan, but be Flexible
Conducting an effective investigation starts with organizing your thoughts and developing a plan before meeting with witnesses. Identify the primary players, including the complaining party, the accused, co-workers, supervisors, etc. Prioritize your interviews. Interviews of the complaining party should have at least two people present. Consider where interviews will take place. A private location is better to avoid distractions, promote confidentiality, provide an appropriate level of comfort and reflect the formality required. But don’t spend all of your time planning. An investigation is only as good as the information it gathers, and memories fade with the passage of time. Moreover, a prompt investigation may allow you to identify and correct a problem before it becomes bigger.
5. Consider Who Should Conduct the Investigation
Some consideration should go into selecting the appropriate person to conduct the investigation and interview employees. Considerations include the job titles and positions of the complainant and the accused, the type of conduct involved and potential exposure to the employer. The ideal investigator will be someone who is, and is perceived as, objective and unbiased, has good interpersonal skills, has experience or knowledge in conducting investigations, knows the company and its policies, is organized, would make a good witness, is able to maintain confidentiality and has some knowledge of discrimination and other workplace laws. Some will choose to have a lawyer conduct the investigation. Because confidential oral or written communications between a lawyer and a client in which a client seeks legal advice are privileged, the client has the right to refuse to disclose such communications. Additionally, a document that reflects a lawyer’s mental impressions, opinions and legal analysis formulated with an eye toward litigation may be protected from discovery as “attorney work product.” However, one disadvantage of having counsel conduct the investigation is that if the investigation leads to litigation, counsel who conducts the investigation may be disqualified from representing the company, and may not be able to keep the investigation confidential if it is asserted as a defense to the claim.
6. Be Consistent in Your Response to Claims
All complaints, large and small, should be investigated thoroughly. Similar incidents of confirmed behavior should result in similar discipline. If your investigation shows misconduct, don’t protect a high-level executive, top producer or favored employee while implementing more serious discipline against other employees who may have less essential roles. Having the same person or group of individuals handle all investigations can help ensure consistency.
7. Conduct a Thorough Interview
This includes interviewing all of the parties directly involved, and all witnesses involved. Ask witnesses to identify other potential witnesses. Include a brief description of the investigation and the importance of confidentiality. Explain that they will not be retaliated against for participating. Request facts, not opinions. Follow an outline, but don’t be afraid to go where the witness takes you. Ask for supporting evidence. When interviewing the complainant, be sensitive to issues raised, but remain neutral. Ask the complainant what remedy they seek. When interviewing the alleged wrong-doer, briefly disclose the nature of the investigation; this will usually include the identity of the complainant. Explain confidentiality and prohibition of retaliation. Ask broad open-ended questions then drill down. Don’t be afraid to ask about other reasons the employee may have made the complaint against them, or for mitigating circumstances. Be familiar with the EEOC guidelines on how to conduct an effective inquiry (available at www.eeoc.gov/policy/docs/harassment.html.)
8. Document the Investigation
Every investigation should be documented with the thought in mind that every sentence may be the subject of a cross-examination in court. Notes should be thorough and thoughtfully written. When taking notes, consider reading them back to the interviewee to confirm accuracy. Record only the facts of the complaint. If you wish, record your thoughts and impressions, credibility assessments, beliefs and the objective basis for such on a separate document. Place the date and your name on all documents and notes that you create. Keep a written record of when you receive documents from, or give documents to, an employee. Written statements from employees should be signed and dated.
9. Come to a Conclusion
In a “he said, she said” type of complaint, it is easy to state that no conclusion can be reached. However, it is important to come to a conclusion based upon the best information available, an objective determination of credibility and a determination of who is more likely to be telling the truth. Involve counsel in the analysis if necessary. A memo should be prepared to the complainant reporting the conclusions and confirming what, if any, action will be taken. The memo should include a confirmation of the prohibition of retaliation, and should inform the employee of other available processes if the employee is dissatisfied with the result. A similar memo to the alleged wrong-doer should be prepared relating to the conclusion of the investigation, any action to be taken and any appeal processes. It is not necessary to share with the complainant the specifics of any discipline that is administered.
10. Be Proactive
Monitor your employees and seek out potential discriminatory disparities instead of waiting for a complaint to be made. If you see a problem, take care of it then by meeting with the employees involved, and making sure they understand that continued misconduct will result in disciplinary action. Never assume that just because you work in a professional organization that such conduct is not a possibility.
