Insights on Investigations
A WORKPLACE INVESTIGATION that is launched to learn the facts behind a harassment or discrimination complaint can help management correct a problem, prevent a lawsuit, and save money. The findings can also provide valuable insight into the organization.
With all these benefits, employers should embrace an investigation as an opportunity and have resources at the ready to properly conduct one. Instead, employers too often drag their feet in pursuing an investigation or lack the resources to conduct a thorough inquiry.
Following are tips on how a company can handle complaints and gather the information management needs to make good decisions. The insights here are gleaned from dozens of investigations I have conducted over the years, combined with lessons from other investigators, court decisions, and guidance from the Equal Employment Opportunity Commission (EEOC).
Whether to Investigate
There are different types of cases when it comes to harassment; some involve claims of economic harm; others pertain to what the courts call environmental harm. The employer is strictly liable if the courts or an agency finds that the supervisor has harassed the victim and inflicted some economic harm, perhaps by denying the person promotions or good reviews. More common, however, is environmental harassment, where the victim has suffered no tangible economic harm. In the environmental harassment situation, the U. S. Supreme Court has given employers an opportunity to avoid liability if they can prove that they promptly investigated and corrected the harassment.
Unfortunately, many complaints are not clear-cut, and in these cases, the decision whether to investigate is a judgment call. Every employer has a finite amount of resources, making it impractical to pursue every complaint with an investigation. How do you decide?
In one case, a female employee complained to the human resources department that her supervisor had yelled at her and used profanity. The human resources director was out of town when the complaint came in, but she spoke with the complainant over the phone about her concerns and did not hear anything that violated harassment laws. In light of this, human resources arranged a meeting with the complainant and her supervisor about the matter.
Before the meeting took place, however, the complainant e-mailed human resources a written complaint alleging an “abusive and extremely hostile work environment” that caused her to be “fearful and distraught.” Although the complainant still did not clearly articulate a legal claim, the employer determined that the allegations should be investigated. This decision, made with the advice of counsel, was based on the words used in the e-mail and with the backdrop of recent gender-related claims by other employees.
When the complainant was interviewed, she contended that her supervisor was abusive to her but not to her male coworker. The employer’s decision to investigate was clearly a good one in light of this allegation. In the end, the investigation did not substantiate that there was differential treatment, but it revealed much about the shortcomings in the supervisor’s management skills and demeanor.
The investigation gave the employer the information it needed to address these issues. By being proactive, management avoided having the case result in a charge of discrimination or a lawsuit. If a charge had been filed, the employer would have been able to assert the affirmative defense that it promptly investigated and corrected any harassment.
Get It in Writing
Employers should request that any employee complaint be put in writing. The employee should be encouraged to be as thorough and specific as possible when documenting the nature of the complaint. Although some might argue that a written complaint can elevate a minor concern to a major issue, in my experience the advantages of obtaining a written complaint outweigh the disadvantages.
The act of putting a concern in writing requires the employee to think through the problem and articulate it to a reader. The written complaint lends a concrete nature to something that, stated verbally, may be nonspecific and subject to varying interpretations, aided by tone, body language, and other factors. The written complaint provides the employer a roadmap of the situation as well as a guide to determining whether an investigation is appropriate.
Chart a Course
Workplace investigations are time consuming, but the process can be streamlined. Advance planning helps avoid wasted effort by creating a roadmap of what the investigator needs to do.
While investigations are organic and the investigator must be flexible, it helps to try to define the scope of the investigation. For example, in some cases I’ve been involved with, complainants present every action that they perceived as negative over a long period of time. Some of the events may have occurred too long ago to investigate, requiring the investigator to limit the scope of the investigation to recent events.
Sometimes, by planning ahead, the company can also achieve additional related objectives with an investigation. For example, in one investigation, the complainant alleged that her direct supervisor was discriminating against her. The employer had concerns about the management style of the accused and asked that this issue be included in the scope of the investigation. Since this was related to the complaint, it could be easily included without causing the investigation to take too long.
The investigator should seek out and review all relevant policies and documents, including personnel files, e-mails, and other tangible materials. Those interviewed should be asked if they have any documents, notes, or other materials that may be relevant to the investigation.
The investigator should also know where he or she is going in terms of the output of the investigation. Will it be concluded when a decision is made on the allegations or will it be based on whether the organization’s policy has been violated or will there be some other benchmark?
For example, in one case, an employee complained that she had been harassed by her manager. The investigation revealed that the manager did not break any laws and his actions did not rise to the level of harassment prohibited by the organization’s policy. However, it did reveal that the manager had deeply flawed communication skills. The organization decided to address the issue through training even though the investigation uncovered no wrongdoing.
Investigators should conduct interviews according to accepted practices. Interviews should be conducted with the person filing the complaint, the person being accused of some inappropriate behavior, and anyone else with relevant information.
The preferred interview order is complainant, third party witnesses, and accused. However, this order is not always possible, and the process should not be unduly delayed to achieve it.
For each person interviewed, the investigator should open with a brief explanation of the reason for the meeting. For example, when talking with potential witnesses, the investigator might say: “There has been a complaint of conduct in violation of the organization’s anti-harassment policy. I am speaking with you because you may have information related to this concern.”
The interviewee should be told that the investigation is confidential and should not be discussed with anyone other than the investigator. Each interviewee should be given contact information for a designated person within the organization; this reassures the person that he or she has an outlet for concerns. The interviewee should also be reminded that the organization prohibits retaliation for participating in the investigation, and he or she should be told that concerns in this regard should be reported to the investigator or the designated contact person within the organization.
The investigator should use a catch-all question at the end of the interview, such as “Is there anything else you can think of to tell me that might be relevant to what we have discussed?” This broad question may encourage the person being interviewed to provide information not previously discussed.
The interviewee should also be told that the investigator may have some additional questions later to set the expectation for follow-up if it is necessary. Otherwise, the person might think the interview is the end of his or her participation and might be surprised if contacted later.
The investigator must be professional and objective, but he or she should at the same time create an atmosphere in which the witness feels comfortable. A nervous interviewee can often be made more comfortable by opening the interview with questions about his or her duties, years with the organization, and various positions held. Questions that can be easily answered can set the stage for more difficult queries.
When the complainant (or another person being interviewed who mentions also being victimized or subjected to similar treatment) describes being groped or touched by the accused, he or she may ask the investigator for some affirmation that this conduct was wrong. However, the investigator should carefully avoid indicating an opinion or judgment during an interview. Instead, the investigator might simply say, “I’ve noted your comments about what happened and will consider them with all the other information gathered.”
Credibility Is Key
The investigation must be credible for the process to serve the company’s objectives. Credibility is achieved through the manner in which the investigation is carried out and through the credentials of the investigator, who should have the appropriate training. It must be clear that the process was unbiased.
Another way in which credibility matters is that the investigator must do his or her best to assess the credibility of the statements by the person bringing the complaint and the credibility of the party defending himself or herself against the charges. Similarly, the credibility of third-party witnesses must be assessed.
Labeling a situation as “he said/she said” does not absolve the investigator or the organization from making findings. The EEOC guidance emphasizes that, in many cases, there will be no witnesses to the conduct in question. If the parties provide conflicting versions of relevant events, the employer must weigh their credibility.
Important factors in determining an interviewee’s credibility include body language and eye contact. Also, investigators can note the level of details provided by interviewees and the extent to which those details make a statement more credible as well as the extent to which those details are supported by statements of others. Some of these skills, such as assessing body language, may require special training to master.
There is no need for managers to feel anxiety when an employee files a complaint. A well-executed investigation can address the specific concern and demonstrate to the entire work force that the organization takes complaints seriously and responds appropriately.
Ginger McRae is a senior consultant with Employment Practices Solutions, headquartered in Southlake, Texas.