Investigating Workplace Discrimination

June 25, 2015

Why Investigations Are Valuable

Discrimination continues to be one of the largest challenges employers face. Among the discrimination charges received by the federal Equal Employment Opportunity Commission (EEOC) in 2014, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

Most employers maintain grievance procedures to internalize complaints of discrimination. By allowing employers to address discrimination issues, most employees will opt not to file charges. In choosing this resolution, organizations avoid adverse publicity, save on legal fees, and are able to correct individual complaints before they become larger. Our Firm frequently investigates internal allegations of discrimination in the workplace. We pride ourselves on our ability to conduct investigations with sensitivity and tact.

When a high level executive is accused of discrimination, it is often best to use an outside Firm. Sometimes an employee is accused of discrimination, but based on the department where the Accused and Accuser work, it is more strategic to have the investigation performed by an “independent” outside firm. Some organizations do not have the time or Human Resources staff to conduct an investigation.

Allegations of discrimination can be very jarring to an organization, especially one that prides itself on having strong HR policies regarding discrimination and harassment. It is critical that an employer investigates these allegations promptly and fairly.

Where to Begin

There are stages to an investigation. We start by reviewing the organization’s policies regarding Equal Employment Opportunity (EEO) and harassment. It is important to learn whatever we can about the background of the situation. We review the appropriate personnel files and all information that might shed light on the nature of the allegations.

While we maintain confidentiality in the interview and entire investigation, due to practical reasons it is best not to guarantee total confidentiality to anyone involved.

The Interview Process

There is an order to the interview process and the Accuser is generally the first person to be interviewed. The goal is to give the Accuser a full opportunity to explain exactly what happened – we call it the “Who What When and Where.” It is important to ask probing questions that will bring out the specifics of the allegations. An investigation is often therapeutic as it affords the Accuser a forum to have his or her “day in court.”

When interviewing our witnesses, we are gentle yet thorough. The Accuser is often raw from the experience and will offer the most information to an interviewer that is empathetic. We also ask each person if there is a writing, such as a diary or any contemporaneous documents, that corroborate the allegations of the Accuser.

It is best to give the Accuser plenty of time to recite his or her allegations so that we have every allegation “on the table” to properly evaluate as the investigation proceeds. Sometimes the Accuser will state additional allegations during the interview; however, that should not concern the investigator, because our goal is to get the entire picture.

An important note: It is often easy to fall into a trap of instantly believing the Accuser. The investigator must keep an open mind throughout the process, and wait until the interviews are completed before reaching a conclusion.

The next step is to interview any “witnesses.” If there are actual witnesses to key events, they are extremely valuable. Often the “witnesses” are fellow employees who are familiar with the situation. They can shed additional light on the facts and provide impartial information so that we can properly evaluate the integrity of the Accuser’s allegations.

There is a delicate balance we need to go through at this stage. We want to interview all of the key “witnesses.” At the same time, we do not want to create a disruption within the organization by interviewing too many witnesses and compromising the future functioning of the management unit that is involved. If the allegations prove untrue, we do not want to harm the reputation of the Accused.

The goal is to develop a full understanding of the facts, before talking to the last individual, the Accused. In meeting with the Accused, we review each allegation to evaluate its individual merits.

In all of our interviews we are assessing the credibility of each individual, and looking for corroborating information, to see if the Accuser’s allegations are honest and accurate.

Putting the Information Together

The next stage is to compile all of the information gleaned from the interviews and the documents into an investigative report. This is the most difficult and time consuming phase of the investigation. It can also be the most exciting, because it is when we put the disparate pieces of the puzzle together and draw our conclusion.

There are two methods to utilize in preparing the report: a chronological-type that “tells the story,” or a summary that groups the narrative into the sections that reflect each interview. Some organizations request that we summarize each interview and also prepare a separate “findings” section.

The report needs to be prepared in a fact-driven style, without any subjectivity. All documents that were relied upon in the investigation need to be referenced and attached to the report.

Reaching the Conclusion

The investigator needs to conclude whether there was a violation of the employer’s discrimination policies. Sometimes the issue is a lapse of good management practices or evidence of bad judgment. There could be a manager who acts like a “bully,” but his or her actions may not cross the line into discrimination.

The employer wants to take appropriate steps to avoid a recurrence of any bad behavior or conduct that occurred. Many clients request that we provide recommendations, if remedial action is appropriate. An example might be a one-on-one training session with the Accused, to ensure he or she understands the EEO rules. A disciplinary warning or a transfer may be in order.  Whether or not discrimination may be concluded, the organization may need to tighten important management behavior or modify practices.

There are rare occasions when the investigator concludes that not only are the allegations of the Accuser unfounded, they were made in bad faith. In such instances, remedial action may be considered against the Accuser.

Communicating the Results

This is a delicate stage of the investigative process and we want to ensure it is handled properly. The employer will want to get back to the Accuser to let him know that the allegations have been properly investigated. If remedial or disciplinary action was taken against the Accused, this information does not need to be shared with the Accuser. We might just say that the organization has completed its investigation and the appropriate steps were taken – the details of which are confidential.

A Final Word

Investigations require a balancing act. While we want to do a thorough job, we must be sensitive to the needs of the organization. The discrimination laws are very strict and once an organization is on notice of discrimination, it must promptly investigate. To obtain the maximum information, we always communicate with the individuals we interview in an easy-going manner, minimizing the use of legal terms or legalese.

We remain mindful of our primary goals. As fact-finders we conduct a thorough and balanced investigation to guarantee that the employer promptly deals with the specific allegations of discrimination. We assist our clients in learning the important lessons of the investigation, as we ensure that future management practices are fair and in full compliance with the law.

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