ABA Section of Business Law
Volume 11, Number 3 - January/February 2002
Checking out claims of harassment
Many employers assign investigative responsibilities to senior staff or to human resources staff. Although not inherently poor choices, it can be difficult and awkward for people to investigate people whom they know, with whom they share a history, and with whom they may hope to share (or hope to avoid sharing) a future. Also, the more salacious the allegations, the more embarrassing it can be for someone who knows the parties involved to ask the necessary questions. In such cases, an independent investigator who is grounded in employment law and investigative fundamentals may be a logical choice.
On the down side, an independent investigator probably won't have the same level of familiarity with your client's organization and mission, compared to an internal staffer's knowledge. As such, an independent investigator will need time to "ramp-up" their familiarity with your client. Designating a point of contact, perhaps someone in the human resources office, to orient - but not to influence - the independent investigator can expedite that process.
Some employers, acting on advice of their counsel or uncertain of their own staff's confidence, neutrality or competence, have successfully used outside counsel to conduct investigations. The paramount reason employers should use counsel other than their own lawyers is that there always is the chance that the investigator will be called to testify as a fact witness in any ensuing litigation, thereby disqualifying that counsel from representing the employer in the litigation under the laws of most (if not all) states.
A lawyer/investigator's relationship to the employer and its regular counsel can be structured in either of two ways: as either a "special counsel," or as an "independent investigator/fact witness." As special counsel, the investigator's work product, including the final report and notes, may be protected from discovery as attorney work product as well as under the attorney-client privilege.
Protection of the investigation using these measures would probably not be the most typical objective, however. The more common objective would be to structure the relationship with the intent of using the investigator's testimony, notes and report to support the employer's affirmative defense. As such, the relationship between the investigator, the employer and counsel for the employer should be established with an eye to reinforcing the investigator's independence and neutrality, as well as having an investigator available to testify as a fact witness without disturbing the attorney-client relationship.
Clearly, employers need to respond to employee allegations quickly and expediently. As important as it is for an employer to act with dispatch, it is equally important to document that timeliness. If there are any delays, the reason for those delays should be documented, particularly if they are beyond the employer's control. The first portion of the investigator's report is a good place for that type of information, and as such should include a chronology of events that led to the investigation, as well as the timing of the initial investigative steps and contact with the investigator.
It is critical that each person interviewed should be told that the investigator is working for the employer and that the purpose of the interview is to gather information that will be passed back to management. I typically advise those interviewed that I'm gathering information at the request of management and for management's review, and that efforts will be made to restrict my report to those who have a need to know its content, but that my objective is to gather information for upper management's consideration and possible action, so confidentiality cannot be guaranteed. I do assure those interviewed, however, that management has promised that no retaliation will occur for sharing information with me.
The success of an investigation can depend on the investigator's interviewing skills. Less seasoned investigators may cling to a script; more experienced interviewers will use sound interrogation techniques, including:
The choice of people to be interviewed also will affect the success of an investigation. I typically interview the complainant first, followed by those identified as witnesses or who may be in a position to corroborate or dispute various points. Then I interview the alleged perpetrator, and swing back to do any necessary follow-up interviews.
In many cases, time and energy will not permit the interview of every employee in an affected work unit, so choices usually must be made. I have also found it useful to watch for and to interview people who have been in a position to observe whatever workplace dynamic is in question, but who are not personally involved in the particular fracas. Testimony from such disinterested and relatively uninvolved witnesses has in my experience provided valuable perspective in corroborating or sorting through conflicting commentary.
Each interviewee's commentary must be considered for bias and motivation, and even the minor details of each person's observations may be useful to corroborate or cast into question the commentary of other witnesses.
In one investigation that I conducted, for example, the outcome was influenced by the fact that the alleged perpetrator adamantly denied having had personal conversations of any sort with his subordinates, yet a former employee mentioned, almost as an aside, that when he had asked her for sexual favors, some were requested as his "birthday gift." This birthday-gift detail fit perfectly with the chronology of events in general, fit with the alleged perpetrator's actual birth date, and contradicted the alleged perpetrator's flat denials of personal conversation with subordinates.
No matter how many people are participating in an interview, only one set of notes should be made for each interview; even slight discrepancies between notes made by different interviewers may be construed to cast doubt over the reliability and credibility of all the notes and recollections of what was said in the interview.
What kind of report should be generated, and what should you and your client do with it?
The investigator's report has only a few appropriate uses. To minimize concern about invasion of privacy and defamation allegations, your client should be counseled to control access to the report and any attachments and to make copies only as absolutely necessary. The report should be captioned as "confidential" and recipients should be advised to handle it in an appropriate manner.
Even still, however, there will be times when you will want to share the report with appropriate but limited parties - including yourself as counsel, selected decision makers, and possibly government agencies. The report may also become evidence in litigation. When reports are presented to an unemployment agency, to a civil rights agency such as the EEOC, or presented as evidence in litigation, counsel should look to the relevant law of qualified immunity to verify the protection that may be afforded.
The employer will benefit from reviewing a detailed summary of each interview to better understand the nuances of what's happening in its workplace. Personal experience suggests that detailed interview information buttresses the report and provides management with greater confidence as it deliberates, and then delivers any necessary sanctions. To protect privacy, while at the same time providing the level of detail that makes a report useful, the body of the report itself can be limited to a chronology of events, a summary of information gathered, assessments of the credibility of the interviewees, and findings of fact and recommendations.
Gritty details can be reserved for an appendix, along with the investigator's observations about each interview. This allows the employer to circulate the more summary report as may be necessary, and also protect the more detailed notes. Sequestering the details in this way should reduce concern about allegations that the employer's investigation or subsequent handling of the report has created an invasion of privacy or has constituted a defamation of character; at the same time such a detailed appendix serves the employer's need for detailed information.
It is important that an employer inform the complainant of the results of the investigation, and that the employer monitor workplace assignments to ensure that no retaliation occurs or is possible. Steps like these constitute a follow-through that, depending on the facts, may be very important in establishing compliance with the Civil Rights Act and similar statutes, as well as being beneficial to workplace morale.
In terms of morale, employees often view the investigation as a tangible expression of their employer's concern about work conditions and the workplace, and they sometimes need to hear from the employer to make closure possible to what in some instances may have been a very traumatic episode.
Telling involved parties what particular action will be taken as a result of an investigation, along with a request for help in controlling unnecessary discussion in the workplace, eliminates the perception that the employer is all talk and no action, and also may help control the rumor mill.
My experience has been that the workplace rumor mill works overtime when allegations are made and when an investigation is conducted. It seems to be impossible to conceal the fact that an allegation has been made, or that an investigation is underway. It may well be more productive to be open with the work force and say that management supports the investigation and seeks its employees' cooperation; communication of this sort has the potential to both clear the air and reinforce a positive managerial image.
A "textbook" employer response to employee allegations of harassment of any sort potentially can limit employer liability. Some employers, under advice of counsel, have begun to retain independent counsel to conduct workplace investigations, while others are ably handled "in house" by the employer's counsel or human resources office.
Regardless of who conducts the investigation, to be effective, an employer must have an appropriate anti-harassment policy in place, and the employer's response must be initiated soon after an allegation is made known. An effective investigation will reflect that the employer has taken the allegations seriously and has subsequently protected the complainant.
The choice of investigator is important. The investigator should be comfortable and grounded in the basics of interviewing, able to ask difficult questions, and be familiar with employment law fundamentals. With the proper investigator to create a good record, a responsive employer can hope to avoid liability, and at a minimum establish a viable affirmative defense to employee allegations of harassment.
Buckleitner practices employment law in St. Joseph, Mich., and conducts workplace investigations. Her e-mail is email@example.com.