Workplace Investigations

Meeting the Standard

 

By Michael A. Robbins¨

 

 

Over the past few years, a number of case and regulatory developments have occurred which have helped set guidelines for conducting proper workplace investigations.[1] Courts have reviewed workplace investigations conducted in the harassment, discrimination, and employee misconduct areas -- and have commented on the quality of those investigations.  Recently, the Equal Employment Opportunity Commission (EEOC) has issued its "Guidance" on conducting harassment investigations.  Together, these court and regulatory guidelines provide a fairly good outline of the requirements that must be met in conducting an appropriate investigation. 

 

In this article, I will attempt to find commonality --to explore those concepts of a proper investigation that are shared both by the California Courts and the Federal EEOC.

 

 

Case Law

 

The California Supreme Court’s January 1998 decision in Cotran v. Rollins Hudig Hall International, Inc., 17 Cal. 4th 93; 69 Cal.Rptr. 2d 900 (1998) is perhaps the most significant development in the investigation area --at least in California.  In that case, the Court determined that, when an employee is terminated for workplace misconduct (e.g., for allegedly having committed sexual harassment) and later challenges the termination as a breach of implied contract not to terminate employment except for just cause, the role of the jury is not to determine whether the employer was correct in its assessment that the employee had in fact committed the harassment.  Instead, the proper role for the jury is to determine whether, in making its determination, the employer conducted an appropriate investigation and reached reasonable conclusions based upon that investigation.  In other words, the question is whether the company acted in "good faith".

 

Although the Cotran Court specifically stated that it was “not going to dictate the precise form that the employer must adopt” in conducting an investigation,[2] following the Cotran decision, a few California courts have reviewed workplace investigations -- commenting on the quality of those investigations.  Most important is the decision of the California Court of Appeal in Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256; 76 Cal.Rptr. 2d 382 (1998) -- a June 1998 decision by the Fifth District discussing the company's investigation into harassment allegations.  Other important cases are Bierbower v. FHP, Inc., 70 Cal. App. 4th 1; 82 Cal. Rptr.2d 393 (1999), rev. den. (1999) (Primarily discussing privilege issues, but mentioning some investigation requirements) and Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101; 67 Cal.Rptr. 2d 827 (1997) (actually, a pre-Cotran case discussing an “exemplary” harassment investigation). 

 

 

 

Regulatory Developments

 

In June, 1999, the EEOC issued its "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors" (hereinafter "EEOC Guidance").  A copy of the EEOC Guidance (investigation questions only) is attached as Appendix. "A". Despite this unwieldy title, the EEOC Guidance contains a great deal of information concerning the EEOC's view of what constitutes a proper harassment investigation --including a list of specific questions for investigators to ask when talking to the alleged victim, to the alleged harasser and to third party witnesses.

 

The Requirements

 

The cases and the EEOC Guidance have quite a number of requirements in common:

 

1.      Promptness-- A company's response to harassment allegations must be diligent and timely.[3] “As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary.”  If so, it should be "launched immediately". [4] Similarly, the investigation should be completed immediately -- but the amount of time to complete the investigation will depend on the "particular circumstances" -- for example, the number of individuals involved in the investigation will affect the time needed to complete it.[5]

 

2.      Impartiality -- The Investigation must be an "impartial" one.  "The employer should ensure that the individual who conducts investigation will objectively gather and consider the relevant facts."[6] The goal is to promote “neutrality in any investigation.”[7]  Such a neutral investigation may be conducted by using someone from the “employer’s human resources department or other neutral entity.”[8]

 

3.      Confidentiality --  "An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.  An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses.” [9] After all, the employer must ensure that "the [accused] employee had a truly meaningful opportunity to tell his or her side of the story and to influence the employer's decision."[10]  “However, information about the allegation of harassment should be shared only with those who need to know about it.  Records relating harassment complaints should be kept confidential on the same basis." [11]

 

4.      Training -- The person who conducts the investigation "should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility."[12]

 

5.      Thoroughness --  "[A]n employer should set up a mechanism for a prompt, through, impartial investigation into alleged harassment."[13]

 

6.      Questioning -- The investigator should ask relevant, open-ended, nonleading questions.  He or she should attempt to elicit facts as opposed to opinions or supposition.[14]

 

7.      Determining Credibility --  "If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility.  Credibility assessments can be critical in determining whether the alleged harassment in fact occurred."[15]  “[R]esolution of close factual questions [involves] difficult evaluations of witness credibility and hard choices among conflicting inferences.”[16]

 

8.      Making a Determination – “Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred.  That determination could be made by the investigator or by a management official who reviews the investigator’s report.  The parties should be informed of the determination."[17]

 

 

Common Problems

 

As the Cotran Court recognized, there is no set way to conduct an appropriate investigation.  Methods will (obviously) vary from investigator to investigator.  However, despite differing methods, a proper investigation must meet the requirements discussed above.  Based on my experience has an investigator and Expert Witness, I have found the following problems commonly to exist:

 

1.      Promptness-- Companies often wait too long for the investigation to commence.  Sometimes, this is prompted by the employee making an initial complaint, but asking that it be kept confidential.  Unfortunately, such a request cannot be accommodated.  Once harassment allegations are raised, they must be investigated.[18]  Another common problem exists when the employee reports harassment--but only to a supervisor who simply ignores the complaint rather than referring it to Human Resources or to some other individual who was trained to handle it.  Proper supervisory training can help eliminate these problems. 

 

The other (equally problematic) side is employers who "rush" into an investigation without proper preparation and proper consideration of the person whose is to do the investigation.  It is important not to confuse "promptness" with "lack of preparation ".

 

2.      Impartiality -- Employers sometimes use an investigator who is "vested" in the outcome of the investigation.  This commonly takes two forms.

 

·        One-- Employers sometimes use an investigator who, in some way, is involved with the incidents. An investigator who, for example, may have witnessed an incident which is part of the investigation, is no longer an impartial investigator.  Instead, he or she has preconceived ideas -- he or she is a "witness." 

 

·        Two-- Employers frequently use an investigator who is in the "chain of command".  Such a person may not be neutral either.  Obviously, if the investigator reports to the alleged harasser, the investigator’s neutrality is compromised -- the harasser may have the ability to influence the investigation.[19] However, when the alleged harasser reports to the investigator, problems may exist as well.  Typically, supervisors are judged by the results achieved by those who report to them.  A supervisor with stellar employees shines as well.  One with poor employees will be held accountable--his or her future will be dim.  Because of this, a supervisor conducting an investigation may well be motivated to "clear" his subordinate employee -- suspecting that any other result might reflect negatively on him or her. 

 

Even if the investigating supervisor is neutral, however, there still may be a problem-- a problem of perception. An Employer’s ability to eliminate harassment depends, in part, on its employees believing that harassment allegations are taken seriously and dealt with effectively.  If, instead, employees feel that harassment allegations are simply “swept under the rug”, they will not bring problems to management’s attention. A perception that harassment allegations are investigated only those motivated to clear the accused (even if incorrect), may well become the employer’s reality.  Eliminating investigations conducted by those in the “chain of command” can help avoid this perception problem.

 

As discussed above, one way to help insure impartiality is through the use of an outside, neutral investigator.[20] However, a well-trained human resources professional, uninvolved in the situation, can also achieve proper results.

 

3.      Confidentiality -- Concerns in this area take two forms. 

 

·        First, the investigator is obligated to maintain confidentiality -- of the complainant, witnesses, and the alleged harasser.  However, this must be balanced against the need to conduct a thorough investigation and to afford the alleged harasser a full opportunity to respond.  It is a difficult balance to achieve.  Employers go awry either by promising confidentiality that they cannot deliver or by adhering to confidentiality to such a great extent, that the alleged harasser is never presented with enough information to allow him or her to respond.

 

·        Second, an employer must be sure that the investigation is not compromised by witnesses talking to (or worse, trying to influence) others. “Laboratory conditions" are (of course) impossible to achieve. However, employers sometimes forget to warn witnesses (preferably in writing) against talking to anyone else about the facts and to strongly warn both parties against trying to influence potential witnesses. It is also important to insure that witnesses are not told who is to be interviewed -- to avoid the possibility of “witness tampering.”

 

4.      Training -- One of the most common problems is the use of untrained “investigators.” As mentioned above, employers are frequently so concerned about "jumping" into the investigation, that they choose somebody who has little understanding of the law and no training or experience in conducting investigations and making credibility determinations. The results of such investigations frequently "speak for themselves" and are easily subject to challenge, regardless of the result.

 

5.      Thoroughness -- A plethora problems exist in this area:

 

·        Inexperienced investigators have trouble understanding who they should interview, and in what order.  For example, a common error is to go directly to the alleged harasser, without getting a complete story from the complainant's point of view.  By the time the complainant’s story is fully understood (and the alleged harasser is revisited) he or she has been given sufficient opportunity to "create" a story -- assuming willingness to do so.

 

·        Inexperienced investigators frequently do not know how "far" to go.  Sometimes, investigations are merely “cursory"--few witnesses are interviewed and there is no real attempt to determine the facts.  A common problem is a reluctance to talk to former employees or to the company’s customers or clients -- even when the investigator has been told that those individuals have specific knowledge about material events. At the same time, an investigator must recognize the difference between relevant information necessary to the investigation and that which is immaterial or merely cumulative. Frequently there is no need to talk to every witness who has been mentioned during the investigation.  In other words, a good investigator knows how far to go, and when to stop.

 

·        Note taking is another area in which frequent mistakes occur. An experienced investigator will create a reliable procedure for taking thorough, accurate notes--and for witnesses to confirm their accuracy.  Amazingly, I have been involved in cases as an expert witness where the investigators took no notes at all!  In other cases, note handling was haphazard, at best.  For example, in one recent case, notes were taken of the interviews with the complaining party and with third-party witnesses.  However, no notes were taken of the interview with the alleged harasser. In yet another case, I became suspicious of the note-taking process when I noticed that, in the middle of notes concerning an April 3 interview, April 4 events were described -- followed by a resumption of a description of the April 3 meeting.

 

·        Thoroughness frequently requires that the investigator revisit witnesses to ask further questions based on the information which was discovered during the course of the investigation.[21]  Often, inexperienced investigators believe they just have “one shot” at each witness--and when additional information develops, that person’s version is left without response. Instead, multiple visits may well be necessary and appropriate.

 

 

6.      Questioning -- This is often the most difficult part of the process and is one in which the most common errors are made. There are two basic types of problems:

 

·        The investigator will ask questions that are too "narrow". Asking about specific allegations is fine, but not if they are the only questions asked. Instead, asking open-ended questions may well elicit a response different then the "narrow" questions.  For example, a witness may not remember the alleged harasser making a particular sexual joke, but, when asked, may remember that the alleged harasser did make other (perhaps similar) sexual jokes.

 

·        I also have seen investigations where the supposed "investigator" really did not ask questions all.  Instead, the investigator simply asked the complainant to tell his or her side of the story and did the same with the alleged harasser.  This is not enough.  The complainant normally does not understand the law and some degree of “probing” must take place.  At the same time, the employer must “press” the alleged harasser for specific denials or confirmations.  Simply asking the person "what happened" is insufficient.

 

 

7.      Determining Credibility -- Untrained investigators frequently are unable to determine credibility, and sometimes do not even try to do so.  A common misconception is that, where it is one word against another and witness accounts cannot resolve the situation, there is nothing more to do.  In reality, even in that situation, there is something to do -- resolve credibility.  However, inexperienced investigators frequently place themselves into positions in which, even if they wanted to resolve credibility, they are not able to do so.  Using inconsistent investigators is one example.  For instance, one investigator hears the victim’s side of the story and interviews witnesses while a different investigator (perhaps the accused’s supervisor) hears the alleged harasser’s side.  Such inconsistency is an impediment to resolving credibility as no one is in a position to compare the reactions of both sides -- no one is in a position to resolve credibility. 

 

Another problem -- attempting to resolve credibility when the major witnesses have only been interviewed by telephone.  Juries do not hear cases via conference call.  It does not work for investigators either.

 

 

8.      Making a Determination – Frequently and especially in harassment investigations, it is one word against another and the stories are diametrically opposed.  The easy way out of this dilemma is to simply decide that “no determination” could be made.  In fact, sometimes, there is no way for the investigator to decide what he or she really thinks happened.  For an experienced investigator, this is the exception, not the rule.  Instead, in most circumstances, an investigator is able to make a determination, based partially on credibility.  Many times "we couldn't decide" is the same as "we wouldn't decide" -- and is worse than having conducted no investigation all. 

 

It is also common for employers to think that only three outcomes of an investigation are possible--“it happened”, “it did not happen” or “we couldn’t decide.”  In reality, a fourth possibility exists -- "there was no harassment, but inappropriate actions still occurred.”  This is an appropriate outcome in many circumstances.

 

Finally, employers sometimes neglect to inform both parties of the results of the investigation--particularly when the alleged victim no longer is with the Company.  Instead, the results should be communicated.

 

 

 

Conclusions

 

Obviously, there is a great deal of commonality between the California Courts and the EEOC Guidance.  Working within the these guidelines, a trained, experienced investigator will, in most circumstances, the able to make a just determination as to what occurred-- which is, after all, the goal.

 

 

 



¨ Michael A. Robbins is President of Extti, Incorporated.  Extti provides Expert Testimony, Training and Investigation services--in the employment area.

[1] By "workplace investigations", I am referring to investigations conducted for the purpose of determining whether discrimination or harassment has occurred or involving workplace misconduct.

[2] Cotran, 17 Cal. 4th at 109

[3] Casenas, 58 Cal. App. 4th at 118.  See also, Silva, 65 Cal. App. 4th at 272.

[4] EEOC Guidance.

[5] EEOC Guidance.

[6] EEOC Guidance.

[7] Bierbower, 70 Cal. App. 4th at 7.

[8] Bierbower, 70 Cal. App. 4th at 9.  See also, Silva, 65 Cal. App. 4th at 272 (an uninvolved human resources representative).

[9] EEOC Guidance.  See also, Silva, 65 Cal. App. 4th at 272.

[10] Cotran, 17 Cal. 4th at 110.

[11] EEOC Guidance.

[12] EEOC Guidance.  See also, Silva, 65 Cal. App. 4th at 272 (there, a human resource representative trained by in-house counsel on how to conduct an investigation).

[13] EEOC Guidance.  See also, the Courts’ discussions of the investigations in Silva and Cardenas. 

[14]Silva, 65 Cal. App. 4th at 272.  See also, EEOC Guidance.

[15] EEOC Guidance.  See also, Silva, 65 Cal. App. 4th at 272.

[16] Bierbower, 70 Cal. App. 4th at 9 (quoting Justice Kennard in her concurring and dissenting opinion in Cotran.)

[17] EEOC Guidance.  See also, Silva, 65 Cal. App. 4th at 277.

[18] EEOC Guidance.

[19] EEOC Guidance.

[20] Of course, I have a "vested interest" in the use of outside investigators -- as I am one.

[21] Silva, 65 Cal. App. 4th at 272.