As the nation engages in a long-overdue reckoning with systemic racism and inequality, American businesses of all stripes have expressed their support for the Black Lives Matter movement or voiced their commitment to fighting discrimination and injustice. Companies know that silence is no longer an option, but neither is lip-service. They must adopt policies and establish protocols that demonstrate their intolerance of intolerance. When complaints arise about harassment, discrimination, or other workplace misconduct, businesses need to investigate and respond to such allegations quickly, thoughtfully, and proactively.
Conducting effective workplace investigations, whether in response to acts related to race, gender, sexual orientation, disability, or other protected characteristics, isn’t merely a way to show you take these matters seriously and that you have your workers’ backs. A thorough process, free from bias and prejudgment, is essential for minimizing a company’s exposure for acts of discrimination and harassment by employees. Here are six key elements of workplace investigations that deliver clarity, fairness, and conclusiveness:
1. Establish an open, transparent, and responsive complaint process.
Almost all workplace investigations begin the same way: with an employee complaint. Workers need to have confidence that they can make their concerns known without fear of retaliation or blowback and that those concerns will reach someone with authority and commitment to respond.
According to guidance from the Equal Employment Opportunity Commission (EEOC), employers should “have a harassment complaint system that is fully resourced, is accessible to all employees, has multiple avenues for making a complaint, if possible, and is regularly communicated to all employees.”
2. Have the right people receiving and investigating complaints.
The EEOC recommends that the employees responsible for receiving, investigating, and resolving complaints:
- Are well-trained, objective, and neutral.
- Have the authority, independence, and resources required to receive, investigate, and resolve complaints appropriately.
- Take all questions, concerns, and complaints seriously, and respond promptly and appropriately.
- Create and maintain an environment in which employees feel comfortable reporting harassment to management.
- Understand and maintain the confidentiality associated with the complaint process.
- Appropriately document every complaint, from initial intake to investigation to resolution.
3. Have a plan.
Upon review of a complaint, the investigator needs to develop a plan for how to arrive at the truth of what occurred. This means identifying individuals to be interviewed and setting a logical order for those interviews. It also requires determining what documents should be requested and reviewed, such as company policies, emails, texts, and instant messages. If the company anticipates that the complaint may lead to litigation, it may need to put a litigation hold on potentially relevant materials and communicate that to applicable employees.
4. Conduct fair, unbiased, and non-confrontational interviews.
Interviews are perhaps the most important and probative aspect of any workplace investigation – if they’re conducted properly. The complainant needs to feel comfortable sharing their story without fear of retaliation or prejudgment. Similarly, those employees whose alleged conduct forms the basis of a complaint should not be made to feel defensive or that they are in the company’s crosshairs.
Investigators should make clear that they are neutral and are not advocates for the complainant or the company. Their conduct and their questions should be matter-of-fact and non-confrontational, and they should demonstrate that they are actively listening to and interested in the witness’s comments. Copious and careful notetaking is also critical for a complete and accurate record.
5. Assess the evidence and prepare a report.
Once the investigator has a complete picture of what occurred (or as complete as it can be), they will need to determine where the truth lies. Whose story was more credible? Whose demeanor was more convincing? Were the claims supported or refuted by documentary evidence or witness testimony?
Prepare a written report documenting the claims, the investigatory steps taken, the evidence gathered, and the conclusion reached.
6. Take action.
A workplace investigation that finds credible evidence of harassment or discrimination is of little use if it doesn’t result in remedial action. Companies should act swiftly yet fairly if the conduct warrants termination or disciplinary action in accordance with the law and company policy. Failing to respond appropriately to evidence of harassment after an investigation is just as wrong, legally and morally, as turning a blind eye to it in the first place
Call Us for Assistance With Workplace Investigations
Getting your workplace investigations right is an essential element of your company’s commitment to workplace fairness and its zero-tolerance policy for conduct that demeans and diminishes others. If you have questions relating to workplace investigations or need assistance with a pending or anticipated matter, please contact the Employment Law Practice Group at Kreis Enderle today.