August 23, 2018
Author: Julie A. Proscia
Organization: SmithAmundsen LLC
I. The Investigation
Employers have an obligation to conduct a fair and thorough investigation, which – to the extent possible – protects the accusing and the accused employees’ privacy and reputational interests. It is imperative for employers to document the investigative steps taken as well as their finding and conclusions for each employee complaint of discrimination and/or harassment received.
Courts will closely scrutinize an employer’s investigation into complaints of discrimination and harassment. The good news is that courts are focused on the methods and manner of the investigation conducted – not the result. Juries expect employers to give employees a fair investigation. Therefore, even if you get “it” wrong, an objective, thorough, and fair investigation may be your best defense.
If a complaint of harassment or discrimination is received, the Company must take the allegation seriously and conduct a thorough investigation. This is necessary for the Company to ascertain the relevant facts and to determine what corrective action to take, or to find out whether corrective action is even necessary. The following steps should be taken in any investigation into a complaint of unlawful harassment or discrimination in the workplace:
- Step One: Conduct the interview of the complainant.
- Step Two: Interview the alleged harasser.
- Step Three: Interview witnesses.
- Step Four: Interview the complainant again.
- Step Five: Make a determination as to whether harassment occurred. Draft investigation report.
- Step Six: Meet/communicate with the complainant and the alleged harasser to communicate your determination/conclusions.
- Step Seven: If warranted, take prompt remedial action.
II. If the Victim Does Not Complain, Do You Have to Investigate?
YES! While it may seem reasonable to let the victim determine whether to pursue an internal complaint, the employer has a duty to prevent and correct harassment and/or discrimination in the workplace. Often victims of harassment will report harassment, but quickly follow-up that statement with “but I don’t want you do to anything about it” or request that the employer proceed anonymously.
If you accept the complainant’s request and do not investigate you are inviting liability based on a failure to respond. The duty to investigate arises when an employer has knowledge that harassment may have occurred. Once an employer learns of the harassing conduct, prompt and effective remedial action must be taken!
Employers must balance their duty to respond against the complainant’s requests for confidentiality and protection from reprisals. Explain that the company’s policy is to provide a workplace free of discrimination and harassment and that a thorough investigation is necessary to determine whether remedial or corrective action is necessary.
III. Confidential Investigations: What Can You Say?
Do not promise confidentiality! You should take steps to protect confidentiality to the extent possible. Explain to the complainant that their name and allegations may have to be revealed during the course of the investigation, but stress that all information will be kept confidential to the greatest extent possible and be discussed only on a need to know basis. You should also explain that other witnesses and the alleged harasser will be told the same. These objectives can be achieved by: (1) limiting the number of persons who have access to the information, and (2) emphasizing to all those involved in the investigation, including the complainant, the accused and witnesses, that it is your policy to keep the discussions strictly confidential.
Harassment and/or discrimination complaints can be quite disruptive and divisive. To help protect confidentiality and minimize business disruption, the investigator should aim to ask generalized or open-ended questions of potential witnesses. For example, rather than specifically asking a witness “did you see Joe inappropriately touch Joan,” the inquiry could instead be phrased as “have you seen anyone at work touch Joan in an offensive way?” By starting out with more generalized questions, the interviewer can preserve confidentiality of the victim’s complaint. If the witness has knowledge of Joan being touched in an offensive way, then the interviewer can graduate to more detailed questions to ascertain the witness’ specific knowledge.
IV. Should You have A Written Investigative Report and How Can It Help/Hurt You?
YES! Once the individual tasked with investigating the harassment complaint gathers all of the evidence, a written investigative report should be drafted. Investigations should commence as promptly as possible and finish in a timely fashion. The individual tasked with conducting the investigation should objectively gather information and consider the relevant facts. This includes interviewing and obtaining signed witness statements.
Having a written investigative report can be used to support management decisions such as discipline, up to and including termination, of the alleged harasser. Moreover, a properly drafted investigative report may be the first piece of evidence introduced at trial. Effective documentation may be used to educate the employee and, even a secondary audience – such as the court.
Documentation in the workplace is important, even more so when a complaint of discrimination or harassment is involved. The benefits of a well-drafted investigative report include:
- Refreshing recollection
- Increasing credibility
- Illustrating consistency
- Providing employers with clear expectations and understanding of actions.
- Can be referred to/considered in the future as individuals may not be available at a later date (unwilling, terminated, vacation, promotion, etc.).
- Assisting in defending frivolous lawsuits.
However, a poorly drafted investigative report will likely be useless in defending litigation and may even expose the Company to liability. Poorly drafted written reports include those that are unsigned, undated, and/or illegible. Likewise, written reports that are inaccurate or vaguely drafted (i.e., not properly describing the story or factual details of what happened) will not be helpful in defending against potential claims.
Finally, when drafting an investigation report you should state and describe the facts and always avoid labels and conclusions! For instance, rather than stating that an employee was “drunk,” you should record the underlying facts that support this conclusion. This may include documenting that the employee “smelled like alcohol,” had “glassy eyes,” was “disorientated,” or “slurring his words.”
V. What Information or Conclusions Should be Included in the Written Investigative Report
The written investigative report should document and detail the complaint, all relevant dates, the individuals involved, the steps taken in the investigation, the witnesses interviewed, and the interviewer’s impartial conclusions based upon the facts. When drafting an investigative report, you should tell the story by factually describing what happened and the significance of the event. For example, explain the who, what, where, when and why. The report should also explain what affect the event had on the employer’s business and/or on other employees. The report should tell both sides of the story.
A properly drafted report should also contain the investigator’s impartial and objective findings on each allegation and identify the Company rule(s)/policies that were violated/not violated. The report should include any prior discipline (if applicable), and document any unprofessional conduct/behavior, even if that conduct did not rise to the level of violating a Company rule/policy. Finally, the investigative report should reflect the investigator’s conclusion and what, if any, corrective action is taken. Even if you get “it” wrong, the court will evaluate your investigation methods and manner – not the result!
When documenting an investigation, consider these note-taking tips:
- Take notes contemporaneously;
- Start a new page for each person that you interview;
- Write down the questions and response as near to verbatim as possible;
- Record only facts, not opinions, and certainly not conclusions;
- Review the facts with the interviewee to be sure you have recorded them accurately – Have the interviewee write a statement and/or sign the finalized notes;
- Finalize your notes and type them yourself to preserve confidentiality and accuracy; and
- Store notes in a file specifically for the investigation, not with the employee’s personnel file records.