EEO Workplace Investigations: Master’s Class · Is a policy violation or a violation of law...

EEO Workplace Investigations: Master’s Class

By Debra L. Reilly, Esq./SPHR January 22, 2014

Don’t be an Orc!

Reilly Workplace Investigations © 2014

When Should You Conduct an Investigation?

�  Is a policy violation or a violation of law alleged?

�  Is there a legal obligation to investigate?

�  Where discrimination is alleged, is the complainant in a protected category? If not, would the conduct nevertheless violate the employer’s rules, ethics or expectations?

�  Is the alleged victim litigious?

�  Have there been prior complaints against same employee?


Different Types of Investigations

� Harassment allegations – fact focused � Discrimination allegations – statistics

focused � Violating the “law” vs. violating workplace

policies vs. mere fact-finding � EEOC investigations � Theft, fraud, ethics, and other “misconduct”

investigations � Police reports


Who Should Investigate? The investigator should:

�  Be impartial and unbiased; should not be “perceived” as biased

� Have prior training in conducting investigations

� Have adequate time to conduct the investigation


Who Should Investigate? (cont’d)

� Not have had prior negative incidents with either the complainant or respondent

� Not be a subordinate of the accused or accuser

� Not be the direct supervisor of the accused



�  Have no previous involvement in the issue under situation due to actual or perceived bias

�  Be comfortable testifying in court

�  Have subject matter knowledge of the elements of (and defenses to) the legal claims alleged (ADA, FEHA/Title VII, FMLA/CFRA, etc.)

�  An attorney investigating can cloak the report from discovery under attorney-client communication privilege and attorney work product



�  Licensure requirements (B & P Code §7520 and 7522(a)&(e)

�  Penalty for non-compliance: $5,000; misdemeanor


Defining the Scope of the Investigation

During the course of the investigation the investigator may become aware of issues that are beyond the initial scope. If this occurs, the investigator should provide notice to the employer, so that the employer may decide the appropriate course of action.

You don’t want to be later accused of burying evidence or burying claims (creates appearance of bias and whitewashing). Use footnotes.


Investigation Plan: Factors to Consider

� What documents are needed and who will be able to provide them.

� Secure electronic and other data and ensure documentation will not be destroyed (hard drives, cell phones, email, etc.)

� Who will be interviewed, in what order, and for what purpose.

� Who will schedule interviews and where they will take place.


Admonitions Consider verbal and/or written advisements that will be provided to witnesses; don’t guarantee anonymity or complete confidentiality.

Caveat: Don’t make a blanket confidentiality admonition without considering “current” case law on this subject….


Confidentiality Admonition �  NLRB decisions (Banner, Hyundai and others)

�  Applies to private sector employers

�  Does not bar employer from asking for confidentiality

�  Weighing test as to whether confidentiality is required �  Necessary to protect witnesses? �  To avoid spoliation of evidence?

�  To avoid fabrication of testimony? �  To prevent a cover-up?


Getting started •  Review case file (written complaint or intake

notes?) and any relevant paperwork •  Review relevant workplace policies •  What will be report format? verbal, written,

both?


Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by

Supervisors

�  Published by EEOC on June 18, 1999

�  Online at: http://www.eeoc.gov/policy/docs/harassment.html

�  Key Points:

(1) “Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility”

(2) Interview complainant, alleged harasser, and third party witnesses


EEOC Guidance (Cont’d) (3) Ask all questions suggested by EEOC

(4) Ask open-ended questions (TMAT)

�  Prepare question lists but don’t be too regimented as you will need to stray from the list.

�  Ask follow-up questions!


Credibility Determination Make a Credibility Determination:

�  Inherent plausibility: Is the testimony believable? Does it make sense?

�  Demeanor: Did the person seem to be telling the truth or lying?

�  Motive to falsify: Did the person have a reason to lie?


Credibility Determination (Cont’d)

�  Corroboration: Is there witness testimony (eye-witnesses, people who saw the complainant soon after the alleged incidents, people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony? BE SURE TO ASK THE COMPLAINANT.

�  Past Record: Did the alleged harasser have a history of similar behavior in the past?


Credibility Determination (Cont’d)

�  Answer avoidance: avoiding a direct question; evasiveness.

�  Short non-detailed answers juxtaposed to other party’s very detailed chronology.

None of the above factors are determinative as to credibility. The fact that there are no eye-witnesses by no means necessarily defeats complainant’s credibility, since harassment often occurs behind closed doors. The fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.


Know your law Know the difference between:

Harassment (severe, pervasive, your policy);

Discrimination (comparator data, statistics, disparate treatment; disparate impact);

Retaliation (what was the protected activity? Is there a nexus? The “but for” test);

** Don’t make “legal” conclusions in your report!


Note-taking Methods Many methods! Each method has pros and cons. See article. Most common methods:

�  Laptop

�  Audio-record

�  Typed witness statements (signed?)

�  Note only catch phrases and the rest from memory


Should Witness Sign Your Notes?

�  Handwritten Notes

Witness sign handwritten notes (each page?)

Caveat: Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. Labor Code Section 432


Should you throw away your notes?

Watch out for the arrow coming your way!


Reaching a Determination If there are direct contradictions between the parties and a lack of documentary or eye-witness corroboration, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.

If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.


Remedial Measures Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. These remedial measures need not be those that the employee requests or prefers, as long as they are effective.

What steps do you take to make sure that your remedial measures are effective (and will continue to be effective)? Document, Document, Document!


Law Enforcement

If sexual assault, battery, or stalking is involved, consider (with advice from your legal counsel) whether police should be notified.


Association of Workplace Investigators (“AWI”)

�  AWI’s 2013 Published Guidelines– take one with you!

website: www.aowi.org

�  My Investigations Blog:

www.workplaceinvestigationsblog.com


EEO Workplace Investigations: Master’s Class · Is a policy violation or a violation of law...

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