The best way to avoid claims of discrimination (including harassment and hostile work environment claims) is to have a comprehensive discrimination policy and well-trained managers. But even with the best of intentions and the best of leaders, complaints still arise. An effective investigation process can send a message to employees that the company takes discrimination complaints seriously and will not tolerate discriminatory treatment in the workplace. An employee who believes that his or her complaint was properly addressed is less likely to initiate a lawsuit against the company. And, even where an employee dissatisfied with the result of an investigation does proceed with litigation, an affirmative defense that limits or eliminates an employer’s liability may be available where the employer conducted a prompt and thorough investigation of the employee’s complaint and took appropriate remedial action.
This article addresses some best practices a company should take when faced with an employee’s discrimination complaint. Because each complaint and investigation presents its own unique challenges, it’s advisable for a company to consult with employment counsel upon receipt of any discrimination complaint and for assistance throughout the investigation process.
1. Recognize When a “Complaint” Has Been Made
A company is on notice of a discrimination complaint as soon as any manager in the organization becomes aware of the issue. That’s why it’s critical that all managers know how to recognize and properly elevate complaints. This includes complaints made by an employee even when the employee says that she just wants you to be aware of the issue but doesn’t want you to do anything about it; a rumor heard through the employee grapevine; or an off-hand remark about discriminatory treatment made during an after-work happy-hour. Any complaint, no matter how it gets to the company’s attention, should be treated seriously and should trigger a prompt and thorough investigation.
2. Select an Appropriate Investigator
A company must determine the appropriate person to conduct the investigation of any complaint. The proper person will be experienced and trained in conducting investigations, impartial and objective, and have no reporting or personal relationship with either the complaining employee or the accused.
In some cases, it is preferable to use an outside investigator to conduct an investigation, such as when a company does not have any internal staff with the time or skill to properly investigate a complaint, or if the company is concerned that its internal investigator may not be objective under the particular circumstances.
When an employee has already initiated legal action or a company is concerned that particularly damaging information is likely to be uncovered, the company may consider utilizing an attorney to conduct the investigation so that the attorney-client and work-product privileges can be asserted as appropriate to protect the investigation records from discovery. There are pros and cons to this approach, which should be considered with legal counsel before proceeding with the investigation.
3. Gather Information from the Complaining Employee
Whenever possible, it is helpful for an investigator to obtain the employee’s complaint in writing as a first step. This will help the investigator create an outline of questions for the employee and a blueprint for the investigation. The employee’s statement may also identify documents that can be obtained and reviewed before an in-person meeting. Of course, an investigator should never be confined to a set script and should remain flexible to follow the investigation where it leads. And, even where an employee refuses to provide a written statement, the investigation should still proceed.
When speaking with the complaining employee, the investigator should try to obtain as many facts as possible, including the who, what, why, when and where of the employee’s complaint. The investigator should ask the complaining employee to identify any witnesses, documents and other information that would support each element of the employee’s complaint.
The investigator should also address any concerns the employee has about continuing to work with the accused discriminator while the investigation is ongoing. In some cases, especially where there is any concern about an employee’s safety, this may warrant a temporary administrative suspension of the accused while the investigation is pending or other steps to effectively separate the employees. Any such separation should not negatively impact the complaining employee.
4. Speak to Witnesses
The investigator should speak to the witnesses identified by the complaining employee to elicit whatever information they have available. In some cases, the investigator may also want to speak to potential witnesses who were not identified by the employee. For example, if an employee complains that her supervisor repeatedly makes inappropriate sexual comments, the investigator may consider speaking to other employees who regularly interact with that supervisor. In all cases, the company will have to balance its desire to obtain full and complete information against its desire to maintain the confidentiality of the complaint (to the extent possible) and the reputation of the accused. An investigator should only disclose to witnesses as much detail of the complaint as is reasonably necessary to elicit the necessary information.
5. Speak to the Accused
The employee accused of discrimination should be given an opportunity to respond to the allegations against him or her, and to identify any witnesses or documents to support his or her “side of the story.” The investigator should also inquire about what motive, if any, the complaining employee might have for asserting a false complaint. When meeting with the accused, as well as with the complaining employee and witnesses, the investigator will be evaluating credibility, and trying to determine what really occurred.
6. Review the Documents
Various documents may be relevant to a discrimination complaint, such as disciplinary records, performance evaluations, e-mails, text messages, etc. In each case, the investigator should determine what documents might be pertinent and gather that information. In some cases, a search of the company’s email system may be appropriate, such as when one employee claims to have received inappropriate emails from another. Documents can help to substantiate what one party to an investigation is saying or raise credibility issues that the investigator must address. All potentially relevant documents should be obtained by the investigator and retained as part of the investigation file.
7. Avoid Retaliation
It is important that all participants in an investigation understand that the company will not retaliate against them for their participation. The investigator should specifically reiterate this policy during each interview and inform all employees how to report any concerns of retaliation. A company will want to be particularly careful to avoid even the appearance of retaliatory treatment when dealing with the complaining employee.
8. Take Appropriate Remedial Action
Once the investigation is complete, the investigator must reach a determination. If an employee is found to have engaged in misconduct, the company should take prompt remedial action. What action is taken will depend on many circumstances, including the severity of the misconduct, the employee’s prior record, and how the company has handled similar situations in the past. Whatever action is taken, the company’s goal is to take effective steps to eliminate any discriminatory conduct and prevent it from occurring in the future. It is important to note that a company can find that an employee violated a company policy or acted inappropriately without determining that any unlawful discrimination occurred. In fact, an investigator should avoid making any such legal determinations.
In some cases, such as a “he-said, she-said” complaint with no witnesses or clear credibility issues, the investigation may be inconclusive. That is ok. Even where no misconduct can be established, the company should still ensure that the accused is familiar with and understands its discrimination and retaliation policies and can provide additional training as appropriate.
9. Document the Investigation
During the investigation, the investigator should take contemporaneous notes of his or her interviews, including the dates of the discussions, the individuals present, and a factual recitation of what was said. The investigator should also create a short report concerning the conclusions reached and any remedial action taken. Because, in most cases, an investigator’s notes will be discoverable in litigation, the investigator should ensure that the notes are both accurate and legible.
When an investigation is complete, the company should notify the complaining employee of the result. While the company does not have to discuss what specific disciplinary actions were taken, if any, the company should inform the employee that it has taken steps to ensure that there will be no discrimination or retaliation going forward. The employee should also be given a direct avenue to come forward with any future complaints of discrimination or retaliation.
Even where the complaining employee does not come forward with any additional complaints, the investigator should follow up with the employee after the investigation to ensure that he or she is comfortable with the working environment and has no additional issues to raise.
Investigations can be complex, time consuming and distracting. But they are critical. Because the stakes of mishandling an employee discrimination complaint are so high, companies should take their obligation to investigate complaints seriously and ensure that there is an effective process in place to quickly and appropriately respond to employee complaints.