When confronted with an employee complaint of discrimination, harassment or retaliation, employers have a duty under the law to investigate the complaint and take prompt remedial action to end the misconduct. The Equal Employment Opportunity Commission (the “EEOC”) recommends “prompt, thorough, and impartial” investigations of internal discrimination complaints. If the investigation uncovers misconduct, employers should take appropriate corrective action against the offender, up to and including termination of employment.
In the past, companies have had internal human resources professionals or other employees conduct workplace investigations. These internal investigators are often responsible for interviewing witnesses, making findings, determining the appropriate disciplinary action to take against the offending party, and even meting out discipline when necessary. However, judges and juries increasingly view internal investigations with skepticism, especially when those investigations appear incomplete or biased in any way.
In the most egregious cases, courts have labeled flawed investigations as “shams.” In some cases, the investigation is considered a “sham” because it appears that it was conducted in such a way as to lead to the desired outcome. This may happen when the investigator fails to interview witnesses who may have information that would alter their conclusions. It may also happen when the investigator fails to gather or consider all relevant evidence in the matter. In other cases, the investigation may be considered a “sham” because the investigator appears biased or the investigation is not thorough.
When confronted with a complaint of discrimination, sexual harassment, or other workplace misconduct, companies should make every effort to conduct a prompt, thorough and impartial investigation, and avoid the suggestion of a “sham” investigation. Although the use of trained and experienced internal investigators is sufficient in many instances, sometimes the best way to ensure a thorough and impartial investigation is to use an outside investigator.
Here are the top 5 reasons to consider an outside investigator for your company’s workplace investigation:
#1: Involvement of a High-Level Employee
Companies should consider hiring an outside investigator when the investigation involves a superior, or any witness at a higher level than the investigator. Employee investigators may have a difficult time questioning their superiors and fully probing their involvement in alleged workplace discrimination or misconduct. It may be impossible for employee investigators to conclude, without fear of reprisal, that their superiors engaged in misconduct and should be disciplined. But, if the investigator concludes that there was no workplace misconduct, the company may have to overcome an assumption that the investigation was a “sham” because the investigator could not make a finding against a superior. Outside investigators are in a better position to conduct investigations involving high-level employees because they can fully question them and make unbiased findings and recommendations without fear of reprisal.
#2: Perceived or Actual Bias
Companies should consider hiring an outside investigator when the company’s internal investigator has previous knowledge of the situation or has had previous interactions with the parties or witnesses. Any previous interaction with the parties or witnesses can create a bias, however unintentional. Even if investigators can remain purely objective throughout the investigation, the impartiality of the investigation may be called into question based on the appearance of bias. To avoid any appearance of bias, the investigation should ideally be conducted by someone who has no previous knowledge of the situation and no prior relationship with the parties or witnesses involved.
#3: Anticipation of Litigation
Companies should consider hiring an outside investigator when an employee has retained a lawyer, filed a complaint in court, filed a complaint of discrimination at the EEOC or similar state agency, or it seems likely that the employee will pursue litigation. The employer’s obligation to perform an investigation still exists even after the employee retains a lawyer or initiates litigation, but the stakes are higher since the details of the investigation and the findings are very likely to become a subject of the lawsuit. Therefore, the employer should take extra steps to ensure that the investigation is conducted thoroughly and with the utmost impartiality by an experienced outside investigator. Additionally, the investigator should be someone who is comfortable testifying at trial and who would make a credible witness for the company.
#4: Ongoing Workplace Issues
Companies should consider hiring an outside investigator when there are multiple complaints involving the same or similar workplace issues. For example, multiple complaints about bullying involving different managers, or multiple complaints over time from women about inappropriate conduct in the workplace, may be indicative of a larger systemic problem. This kind of situation may require the time and expertise of an outside investigator who is knowledgeable about employment matters and can make recommendations about the need for training and recommend broad policy and procedural changes for the organization.
#5: Better Optics and Outcome
Companies should consider hiring an outside investigator when there is concern about employee perception and morale. Retaining an outside investigator demonstrates to employees that the organization takes complaints of discrimination, sexual harassment, and other workplace misconduct seriously. It also demonstrates that the organization is responsive to employees’ concerns and committed to finding solutions to make the workplace better. When employees see their complaints being taken seriously and handled fairly, they may be less likely to pursue costly litigation. Consequently, even when wrongdoing is found, a thorough investigation by an impartial outside investigator can improve outcomes for employers and employees alike.