By Brooke T. Iley, Partner, Blank Rome LLP: Employment, Benefits and Labor Practice Group

Handling internal complaints and reports of inappropriate workplace conduct is a serious and sensitive matter. Employers must be prepared to act quickly to conduct investigations into both formal and informal allegations of harassment and discrimination. To that end, establishing a clear process and internal procedure is critical when conducting investigations in order to minimize risk and legal exposure.

Proper investigation of employee complaints requires organization and an understanding of obligations under the law. In order to fully prepare, the investigator must first understand that a successful investigation of an employee complaint has dual goals. First, the investigation is fact-gathering in the sense that it allows the employer to gather facts relating to the allegations of inappropriate conduct and to render a proper business decision and/or disciplinary action.

At the same time, the employer should conduct an investigation with the goal of avoiding liability. A properly conducted investigation may stop a lawsuit from being filed. Even if this is not the case, the investigation allows the employer the opportunity to gather useful information if a lawsuit is filed. Thus, a successful investigator must understand the purpose of the investigation and prepare accordingly. The person designated to investigate will vary depending on the nature of the complaint. There will be situations that will necessitate investigations be conducted by outside counsel or third party investigators. Employers should be sensitive to these possibilities and seek help when needed.

Preliminary Fact Finding

Often, when a complaint is received, an employer will rush to judgment instead of taking time to gather critical information. Initially, the employer should review the personnel files of the complainant and the accused to ascertain whether other complaints have been made by or against either party in the past. Additionally, the employer must evaluate the relationship that exists, as well as personality characteristics among those involved. This information is necessary to set the tone and style for the investigation.

Next, all applicable company policies and procedures should be gathered. The investigator must fully understand specific company guidelines and rules with respect to the alleged conduct in order to conduct a meaningful investigation.

At this point the investigator should prepare a checklist for the investigation. The purpose of the checklist is to keep the investigation focused, organized and thorough. Consider the following:

• Fully understand the nature of the complaints being made.
• Identify legal issues and factual areas that are necessary to resolve these issues.
• Set time frame to conduct and complete the investigation.
• Identify additional documents and review before interviewing witnesses.
• Set goals for each interview, such as corroborating other testimony.
• Set order to question potential witnesses.
• Outline general interview topics.

Finally, before beginning interviews the investigator should prepare a witness interview outline. An outline will ensure a thorough and consistent line of questioning. If similarly situated witnesses are the subjects of the same type of interview, the investigator will be able to compare and contrast the responses from a standardized set of questions.

Interviewing the Complainant

In incidents of harassment and discrimination, an employer has essentially three goals in communicating information to the complainant. First, the employer must protect the complainant’s safety. Second, the employer must think about its own legal defenses if a lawsuit is filed. Make sure to let the complainant know the employer’s commitment to a “zero tolerance” policy by assuring a thorough investigation and an appropriate course of action. Third, the employer must take the appropriate steps to assure no retaliation against the complainant.

Consider any necessary measures to manage a crisis situation. Determine whether there is any potential safety is at risk or whether there is a hostile environment that must be diffused. Also, explain your company’s anti-harassment policy and assure that you will be taking all necessary and appropriate steps, beginning with a thorough investigation.

As stated previously, an investigator should not promise confidentiality. Although an employer must make sure that there are sufficient elements of confidentiality so people feel free to voice complaints, avoid making a promise of secrecy that cannot be kept if a thorough fact-finding investigation is to be conducted. Never ignore a complaint simply because the complainant has asked that his or her problem not be disclosed or because the complainant says that he or she does not wish to make a formal complaint. Explain that the company is obligated to investigate any and all allegations of harassment and/or discrimination.

Interviewing Other Witnesses

The investigator should make appropriate disclosures concerning the purpose of the interview. Consideration should be given to whether it is necessary for the investigator to obtain a signed acknowledgment from the witness. An investigator must be honest about the purpose of the interview to establish credibility. Identifying a general purpose such as “workplace conduct” may be all that is needed. Reiterate confidentiality of the complaint to avoid possible retaliation claims.

When interviewing the “accused” they should be given the opportunity to provide an accounting of the event that formed the basis of the harassment complaint and to advise employer of any additional information that should be considered during the investigation. If the accused refuses to participate, the investigation should proceed.

While it is a primary goal to maintain confidentiality to the greatest extent possible, an investigator cannot and should not guarantee that information will remain confidential. Inform the witness that the information provided will only be shared with members of management or others who need to know. Generally, the investigator should not tell the interviewee what other witnesses have said, and the investigator should not discuss any opinions or conclusions.

An investigator should avoid making any promises related to participation in the investigation as this can be construed as unlawful threats supporting a retaliation claim. Allow the witness to make any changes or additions necessary to clarify or correct the statements already provided. An investigator should always remain neutral while keeping the interview process fluid, and retrieving as much information as possible. If the interview becomes confrontational or emotional, take a break. Put the witness at ease, but at the same time, establish and maintain control of the interview.

Types of Questions to Ask and to Avoid

Avoid loaded questions such as, “Are you a difficult manager, or are you a relaxed type?” Neither of these questions has a “right” answer; instead, a witness is being asked to choose between two statements that are necessarily accurate. The better question to ask would be, “describe your style of management”. Avoid accusatory questions, such as, “We have been told that you stole money ” or “Why did you steal from the company?” Instead, phrase these statements as suspicions, such as, “You are a suspect in a recent theft.” Questions should be simple and direct.

Begin the interview with open-ended questions. Try to avoid the use of “yes or no” questions. In investigations regarding specific events, inquire about all of the events that occurred during the relevant time frame in chronological blocks of time. Focus on the basic questions: Who was involved, what happened, where did it happen, how did it happen, and why.

During the interview, an investigator should always be mindful to separate information that is based on hearsay, rumors, gossip, or conjecture. In addition, confirm whether there are any notes, documents or other evidence. Be sure to ask the witness to list all the individuals who have knowledge of any events.

Throughout the interview, it is wise to periodically review and summarize statements that the witness has made. This is helpful to assure accuracy, and it helps to close a particular topic or keep a discussion on track. Ask the witness to confirm that the information is complete and accurate. Reflect that confirmation in the investigation notes.

Concluding the Investigation

The investigator will need to quickly assimilate all notes and materials into an orderly summary of findings and facts to be reviewed with members of the employer’s management and legal team. After reviewing the complaints made and the information gathered during the investigation, the employer will discuss legal and business obligations. At this point, prompt remedial action, if required, should be taken. At all times the complainant’s well being should be paramount. It is always prudent to reissue the employer’s anti-harassment and discrimination policies and to scheduling management training regardless of the outcome of a harassment or discrimination investigation.
Conclusion

Thorough preparation along with a defined process will help employers successfully handle investigations into employee complaints of discrimination and harassment. A proper investigation will provide an employer the tools to take appropriate disciplinary action and to minimize liability.