Employment Discrimination Investigations: Getting the Nitty-Gritty Details Right

 

By Kristin Casler, featuring Yamilet Hurtado of K&L Gates, Sharon Apple of Nestlé Nutrition North America, and Matthew A. Goodin of Epstein, Becker & Green.

 

Whether you are new to employment discrimination investigations or are a seasoned veteran, it is key to understand the why and the how of them so that you protect your organization from financial and reputational damage and workplace disruptions. Experts who regularly deal with discrimination claims caution that juries often award large verdicts in employment discrimination cases not because the initial conduct was so egregious but because the company’s response was delayed, inappropriate or simply never came. Know what you must do for your organization to avoid that fate.

 

The why of investigations

“Really understanding the reasons for conducting investigations helps guide the investigation and ensure you get the nitty-gritty details right,” said Yamilet Hurtado, an associate at K&L Gates.

 

Discrimination, harassment and retaliation are not just morally and legally problematic—they cause workplace disruption and damage relations with employees, customers, vendors and suppliers. Such serious ramifications require serious examination. You will want your investigation of any alleged misconduct to ensure full compliance with federal and state laws and with your organization’s anti-harassment, non-retaliation and non-discrimination policies, Hurtado said. An investigation also provides a mechanism for resolving complaints about behavior and for determining if discipline is necessary.

 

Hurtado said that a well-conducted investigation may shield you from a lawsuit or position you to defend one. The advantages of a prompt, thorough investigation include establishing a good, factual basis so that the employer can make a well-reasoned decision about an employee’s future and the attorney can advise the client fully of the risks and benefits in proposed employment decisions. It also enhances the company’s ability to take prompt corrective action and preserves relevant evidence in the event of litigation.

 

Further, Hurtado said that there is additional value to investigating employee complaints. An employee who feels he or she has been heard and that the complaint has been taken seriously is far less likely to file a charge with the Equal Employment Opportunity Commission or to litigate a claim.

 

Faragher/Ellerth defense

Importantly, a proper investigation preserves any potential Faragher/Ellerth affirmative defense (Faragher v. City of Boca Raton, 524 U.S. 775 [1998]; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 [1998]). The defense provides that an employer may not be liable for harassment, if:

 

• There was no adverse employment action—a “significant change in employment status, … [such] as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits”
• The employer exercised reasonable care to prevent and promptly correct the harassing behavior
• The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm

 

In order to take advantage of the Faragher/Ellerth defense, organizations must implement appropriate workplace policies, establish complaint procedures and promptly respond to and investigate all complaints, Hurtado said. Note the significance of “prompt.” Hurtado said the definition will vary, but delay can cause a huge liability problem for a company. It implies wrongdoing, undermines corrective action and may impact the quality of the investigation.

 

The how of investigations

Once a complaint is made, Sharon Apple, associate general counsel of Nestlé Nutrition North America, suggests 10 essential components of a proper investigation:

 

1. Interviewer & scribe

 

Apple says it’s helpful to have two people present—one who is the interviewer, such as a human resources representative or in-house counsel, and a scribe who takes copious notes. That permits the interviewer to really listen to the answers and form follow-up questions without the distraction of taking notes.

 

2. The right introduction

 

Be sure to thank the employee for coming forward or for participating.

 

Explain everyone’s role. “You know why you are there and want to jump right in, but for the participant, it may be his first time, and he may be nervous,” Apple said. “He might even think he is in trouble. Appreciate what that person might be feeling and speak to him accordingly.”

 

Give the appropriate warnings: UpJohn (the interviewing attorney represents only the company, not the employee); and Weingarten Rights & Johnnie's Poultry (the right to request a union representative and not to be punished for it).

 

“Make sure warnings are documented in your notes. If the investigation leads to litigation, and the investigation process becomes an issue, you want to be able to demonstrate as the interviewer and attorney that you followed proper procedure in delivering these warnings,” Apple said.

 

3. Confidentiality

 

Tell employees that you cannot promise complete confidentiality, Apple said. The information will need to be shared on a need-to-know basis to fulfill the company’s obligation to conduct a full investigation. However, you cannot forbid an employee from discussing the investigation. The National Labor Relations Board (NLRB) has held that a blanket confidentiality mandate is unlawful because employees have the freedom to discuss with other employees the terms and conditions of employment. A company should assess and weigh the need to require confidentiality against the employees’ interest in discussing workplace investigations. If it is determined that confidentiality is necessary, explain the company’s preference that the investigation details not be discussed and why (e.g., to protect the integrity of the investigation—avoid potential destruction of evidence, risk of witness collusion or fabrication, protection of witnesses, etc.). Be sure to document this exchange. Keep in mind, you can certainly ask if they have discussed the investigation with anyone else, and interview those employees, too.

 

4. State the objective of the meeting

 

Tell employees that you seek the truth. You can ask them, “Will you tell the truth? Will you give complete answers?”

 

Stress that no conclusion has been reached and that you are committed to being objective and complying with company policies, particularly non-retaliation policies.

 

Let them know that they can take a break.

 

Apple said you also should confirm that the employee is comfortable with you as the investigator. Employees cannot choose the investigator, but they can express a desire for a change. Investigators can head off some issues by anticipating, for example, that a woman claiming sexual harassment might be more comfortable with a female investigator.

 

5. Document

 

Apple stressed the need for documentation. Note the stop and start time of each interview and information on each interviewee (e.g., name, duration with company, position(s), etc.). Such details could help demonstrate thoroughness.

 

6. Gather and document the facts

 

Apple suggests allowing an employee to tell the story before asking any specific questions. Try not to interrupt. Then, follow up to identify who was present during any alleged incidents, what was seen, said or heard by whom? Ask open-ended questions and be sure to follow up with “describe,” “explain” and “tell-me” type questions.

 

Ask employees to set the scene—to explain where they were and what the response was to what happened. Tell them not to guess. Ask if they have any documents or records, whether they are digital or hard copy.

 

“Cross examine to make sure you’re getting every detail,” Apple said. “You don’t want a new allegation to come up in litigation.”

 

If there was a delay in making a report, ask why. You should also inquire whether the report was made to anyone else at the company and, if so, to whom. If a manager failed to investigate or take the appropriate steps to ensure an investigation was conducted, the company could have a problem.

 

7. One last reach for information

 

Be sure to exhaust the topic. After gathering all the information, ask “Have you told me everything that you believe is relevant?” “Is there anything else?” Document that you asked these questions and the responses.

 

8. Obtain employee’s confirmation to come back

 

Finally, make sure they know they can come back, that way they can’t claim that they didn’t know they could bring you additional information. It is also a good practice to have the employee sign the interview notes.

 

9. Non-retaliation policy

 

Remind employees that retaliation for making the report or participating in the investigation is against company policy. Be sure to inform them who to contact with any concerns if there is a belief of retaliatory conduct.

 

10. Thank the employee

 

Express gratitude for the cooperation and reiterate the preference for confidentiality, if applicable.

 

Avoiding the pitfalls

“Most employers are aware of their responsibility to investigate, but they don’t always do the best job they can do,” said Matthew A. Goodin, a senior attorney at Epstein, Becker & Green. “You’re never going to have a perfect investigation, but you should be able to avoid most mistakes and help your investigation stand up.”

 

Here are the top 10 mistakes Goodin said employers can avoid:

 

1. No policies or training on how to conduct investigations

 

Very few companies actually have policies that describe how staff should conduct employment investigations, Goodin said.

 

“The most common questions a plaintiff attorney will ask an investigator in a deposition are, ‘What has been your training? How many investigations have you done? Does your company have a policy? Did you follow it?’” Goodin said. A policy ensures that your staff members, no matter where they are, are conducting investigations the same way.

 

If the investigator is a novice, you don’t want them to have to admit that. Have them shadow an experienced investigator through several investigations.

 

2. Delaying the investigation or not conducting one at all

 

Every employer has a duty to take prompt, effective remedial action. Even if you do everything else right, needless delay can still cause liability, Goodin said.

 

“Nothing looks worse than an employee complaining that they are being harassed right now on the job and it takes two days to get a reply or three weeks to commence an

investigation,” he said.

 

If there are unavoidable reasons for the delay, document and explain them.

 

3. Potential bias

 

Always check for bias underlying the claim. Does the employee have a reason to fabricate it? A vendetta? Also make certain that the person conducting the investigation doesn’t have supervisory authority over the accuser or alleged perpetrator and that the investigator has not had prior dealings with them that might make the investigator biased. If in doubt, bring someone in from another region, if possible, Goodin said.

 

4. The “inconclusive investigation”

 

Don’t just assume you have a he said/she said situation and leave a complaint unresolved. Pay attention to the parties’ demeanor, Goodin said. Is anyone avoiding eye contact or questions? Record your observations. Look for corroboration on both sides of the alleged conduct. Consider talking to coworkers, even if they did not witness the incident. They might tell you if the reporting employee is overly sensitive, or if the accused always behaves that way.

 

“This information can be very helpful in tipping the scale of believability to one side or the other,” Goodin said.

 

5. Inadequate documentation

 

If your case goes to litigation, the plaintiff’s attorney will pick apart every word of your investigation. Make sure your report is thorough and thoughtful, and includes reasons for your conclusions, all relevant evidence and the witnesses’ signatures on their statements. It helps to have someone else review your report. And by all means, Goodin said, make it tidy and not full of spelling and grammatical errors. “The jury will think the investigation was sloppy, even if it was thorough,” he said.

 

6. Not interviewing all potential witnesses

 

Make sure you interview every possible witness, Goodin said. If someone has been terminated and refuses to speak to you, document that you tried. Interview coworkers, and don’t miss folks who are on vacation.

 

7. Not taking remedial measures during investigation

 

Some jurisdictions have very clear case law requiring remedial action be taken during the investigation to protect the parties. Goodin said you should separate the involved parties, and make sure the alleged victim is not placed in a less desirable position or location, or it could be seen as retaliation. Watch for retaliation while the investigation is ongoing.

 

“Even before the accused has been confronted, from the very second the complaint has been made, you must take every step to make sure the victim is being protected from retaliation,” Goodin said.

 

8. Not taking steps to avoid retaliation

 

Companies must have a policy expressly prohibiting retaliation and encouraging the reporting of it. Investigators must inform the complaining employee, the accused, and witnesses of the policies and insist that the complaining employee report all suspected retaliation. Document that you’ve given this admonition, Goodin said. You also should watch for delayed retaliation, months or even a year later. He suggested contacting victims periodically to verify there is no retaliation.

 

9. Problems with confidentiality

 

Do not promise confidentiality, Goodin said. He reiterated that the law requires investigation of every complaint.

 

10. Inconsistency

 

Goodin said he has seen many times an investigator go through the case against a high-level employee and decide no discipline is warranted because the company doesn’t want to lose the employee. Yet, a lower-level employee accused of the same conduct was severely disciplined. That is just asking for a big punitive damages award, he said.

 

“If you have comparables, use them to keep your discipline consistent,” Goodin said. “If you don’t have prior comparables, think about what you would do if you were disciplining a high-level employee. If you know you won’t want to terminate a high-level employee, don’t terminate a lower-level employee for the same conduct.”

 

This article is based on a complimentary LexisNexis^® webinar. The views expressed are those of the speakers and do not necessarily reflect those of their organizations or clients.