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Top 10 mistakes in employment investigations

July 11, 2011

It’s finally happened.  One of your employees has come to you, or your HR department, complaining of harassment or discrimination.  (If it hasn’t happened yet, congratulations; stay in business awhile, it will.)  Now comes the investigation.  And as we know from Watergate, Monica-gate, Scooter-gate, or Weiner-gate, it’s not the crime that’s the real problem, it’s the cover up.  In harassment and discrimination cases, the employer’s investigation can stop a problem in its tracks, or create even bigger ones.

Some advice on what NOT to do when the complaint comes across your desk:

1.  Dismiss the complaint, or the complainant.  It may be human nature to want to minimize other people’s failings, but now is not the time to reflexively defend the alleged harasser, or tell the complainant to man up.   If an employee is telling you there is a problem, believe it — there is a problem.  And your saying “I’m sure he was just joking,” or “you must have misunderstood,” or “you need a thick skin in sales,” is going to create a bigger one.  Respect the complaint, and respect the complainant for giving you the opportunity to fix it, hopefully without a lawsuit.

2.  Procrastinate.  Investigations are not fun to conduct.  They don’t come with a deadline.  They don’t add anything to the bottom line.  So in a busy office they can get low priority.  Big mistake.  Delaying an investigation is going to make it much harder to conduct, as people’s memories lapse or alibis get manufactured (you’d better believe it happens).  Delay also violates your legal obligation to take reasonable steps to prevent harassment before it happens and to stop it when it does.  Act, and act fast.

3.  Ignore procedures you put in your handbook.  You paid for that handbook, you really ought to read it.  (And train your supervisors on it.)  Most likely, it has a description of what will be done in an investigation.  That’s your instruction manual.  Follow it.  If you don’t, you’re going to be accused (with some justification) of conducting a cover-up rather than a good faith investigation.

4.  Put the alleged harasser’s buddy in charge.  Don’t laugh, it’s happened.  Investigations are worthless if they are not objective.  In fact, they are worse than worthless.  They can turn a potentially isolated incident into a major disaster.  Get someone who has no connection with either party to conduct the investigation. If you have to, hire someone.

5.  Promise confidentiality.  Promising the complainant complete confidentiality is impossible.  You need to talk to others to conduct the investigation.  How else can you find out what occurred, or evaluate the credibility of the actors in the frequently-occurring “he said, she said” situation?  An employee seeking confidentiality needs to be reminded that the company will not tolerate retaliation (see number 9).  But your legal duty to thoroughly investigate means you can’t promise that no one will hear about what happened or who was involved.

6.  Ignore witnesses. If the complainant says someone heard or saw something, talk to them.  Ignoring the complainant’s witnesses is another indication of a whitewash.  To a jury your not talking to a potential witness means you reached your conclusion before the investigation started.  That’s not a good thing.

7.  Keep informal (or no) records.  If the investigation is not documented, it didn’t happen.  Write everything down.  Keep it in a separate file until it’s complete.   If discipline is imposed against someone after the investigation is done, by all means the reason should be included in the appropriate personnel file — just not while the investigation is pending, please.

8.  Conclude with “I don’t know.”  Let’s face it, many complaints boil down to one person’s word against another.  You still have to make a decision.  Either something happened or it didn’t.  Say what you think, and document the objective reasons why you think it.

9.  Retaliate.  “I think I’ll just put the complainant on the night shift to separate them while I sort this whole thing out.”  Wrong.  You just retaliated against the complainant, and added a cause of action to the lawsuit.  That goes for anything that could be characterized as adverse (more frequent performance reviews, exclusion from meetings, changes in responsibilities, and many more things can be considered retaliatory).  Also, keep the complainant informed of the progress of the investigation, and follow up during and after the investigation to make sure nothing untoward is happening.  And, I hope it goes without saying but will say it anyway, stop it if it is.

10.  Let harassment or discrimination slide.  If you conclude that something improper happened, you need to do something about it.  It doesn’t matter if the harasser is the biggest rainmaker in the firm, conduct that violates the law and your policies must have consequences.

When you find yourself in a hole, conventional wisdom says first to stop digging.  Avoiding these mistakes will help keep the inevitable potholes in your workplace from becoming sinkholes.

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7 Comments
  1. Andrea permalink

    Casey, Thanks for another informative blog piece. Andrea

    • Thanks — Means a lot from an investigation expert!

  2. Doug Herbert permalink

    Excellent list, but I’m not sure about point #8. Sometimes the evidence really is inconclusive, even taking demeanor and other indicia of credibility into account. In such cases, the only honest answer may be “I don’t know.”

    The EEOC Enforcement Guidance on investigations (6/18/1999) specifically recognizes this outcome as a possibility: “If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.”

    • Doug, thanks for the great comment. I agree that an inconclusive determination is a possibility, and the EEOC’s suggestions for dealing with it are spot on. My observation is that the “inconclusive” conclusion is a true rarity. The problem I see far more frequently is the “inconclusive” determination being applied as a way of ducking a hard decision. And that, of course is no good for employer, complainant, or alleged bad actor.
      Thanks for your interest in the post!

  3. Thank you for a great post. I am adding it to my list of personal reminders to ensure that I do a complete and thorough investigations.

  4. Marjorie permalink

    I like your list, Casey. I would add an eleventh mistake: ignore the complainer’s request to be separated from the alleged harasser at the workplace.

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