Best Practices for Workplace Discrimination Investigations
August 18, 2009
Few human resource professionals look forward to workplace discrimination investigations. They can be contentious and uncomfortable, and often reveal the uglier side of individuals and, sometimes, even entire segments of the company. Of course, allegations of workplace discrimination cannot be ignored. In fact, a proper and complete investigation can be critical to an employer’s defense of such claims, and a poor or incomplete investigation can be almost as harmful as no investigation. Below are a few tips for conducting good investigations.
1. Select an Appropriate Investigator. The person assigned to investigate should have a few critical qualities: a thorough understanding of the issue being investigated; an ability to command the respect of the individuals to be interviewed; the ability to maintain confidentiality; and a lack of personal involvement in the situation under investigation. Often, a human resources professional will fit this bill. However, there are situations where a third-party with greater investigatory experience is a better option. For instance, in-house or outside counsel may be better equipped to navigate potentially serious harassment or other allegations which may result in litigation. If counsel is involved, there is also a possibility that certain communications may be protected by the attorney-client or attorney work-product privileges.
2. Make the Investigation a Priority. As a general rule, a prompt investigation is key. If inappropriate or illegal conduct is occurring, it is imperative to stop it as quickly as possible. Even if the investigation shows that the allegations are unfounded, a prompt investigation lets the workforce know that the company takes such matters seriously, and has the additional benefit of supporting certain legal defenses to harassment claims.
3. Prepare the Topics/Questions in Advance. The interviewer should prepare thoroughly for the interview. At a minimum, make an outline of the topics to be covered. Whether to prepare a set of specific interview questions is a judgment call which depends, in part, on the expertise of the investigator. Writing out key questions in advance minimizes the risk the investigator will miss something. If many individuals will be interviewed, a list of questions may result in more consistent and controlled interviews. On the other hand, it is a mistake to become so wedded to written questions that you cannot deviate from them. If a witness offers relevant information which you did not anticipate, be flexible. Set your prepared questions aside and ask follow up questions tailored to the new information.
4. Interview All Necessary Witnesses. Failure to interview all persons who may have relevant information is a common mistake. Employers often have a natural inclination to “keep a lid” on the investigation by interviewing only one or two employees. While no one wants a sensitive issue to be the topic of employee scuttlebutt, you should not allow fear of employee gossip to result in an incomplete or imbalanced investigation. Limiting the investigation unnecessarily can yield uninformed conclusions and leave the adequacy of the investigation and the efforts of the investigator open to legal challenge.
5. Use Two Management Representatives. As a general rule, you should have another management representative with you during each interview. Occasionally a person interviewed later claims to have been threatened or bribed, or otherwise claims that the interview process was mishandled. A team interview approach will provide two witnesses to contradict those claims, and has the advantage of allowing one representative to take thorough notes while the other asks questions.
6. Start With the General and Move to the Specific. In most cases, your opening question should not be to narrow: for example, “Did you see John Smith walk up behind Mary Jones on Thursday in the lunch room and slap her on the back?” A good investigator starts with open-ended questions instead. This approach increases the likelihood that you will receive a witness’ best recollection instead of a recollection influenced by someone else’s version of events, and that you will receive more information. Of course, if the open-ended questions do not elicit sufficient information about the relevant events, ask direct questions about specific incidents.
7. Consider Interim Protective Measures. In extreme situations the company may need to take steps to protect the alleged victim while the investigation is ongoing. If a witness may be physically harmed or intimidated, it may be necessary to remove the accused from the workplace until the investigation is over. In other situations, it may be relatively easy to switch employees’ work assignments so that the accused and accuser do not interact while the investigation is proceeding. Keep in mind, however, that moving the alleged victim could be considered unlawful retaliation. It is therefore better to move the accused, not the accuser.
8. Guard Against Retaliation. An employer may not retaliate against an employee who complains about unlawful harassment or discrimination. Recently, the U.S. Supreme Court ruled in Crawford v. Metro. Gov’t of Nashville & Davidson County that Title VII’s prohibition against retaliation extends to a witness who corroborates allegations of unlawful conduct. You should warn the accused that he or she may not engage in retaliation and, remind each witness that, if he or she experiences retaliation, to report it to the company immediately.