I have devoted a good part of my legal career to either conducting investigations or scrutinizing them. As a prosecutor, I investigated hundreds of cases, ranging from kidnappings to homicides. As an employment lawyer, I still investigate cases, now on behalf of employers.
Far more frequently, however, I evaluate the investigations conducted by employers in the course of my representation of a client who has complained about discrimination and/or harassment in the workplace. Not only do I view such investigations as an opportunity to place my client’s accusations in fuller context; I scrutinize them both procedurally and substantively to determine whether the investigations themselves are a product of further discrimination and/or retaliatory treatment by the employer. Below are the top five red flags I look for in reviewing an employer’s investigation.
I have come across too many investigations where the investigator simply fails to complete the task. One often overlooked yet obvious step is to ensure that all witnesses are interviewed. For example, I have an age discrimination case in which my client complained to human resources that his supervisor made ageist comments at two department meetings and provided to HR the names of all the employees who attended those meetings. After the investigator spoke to just one attendee, who happened to deny the comments were made, the investigator apparently did not see any need to talk to the others. You can be sure the employer’s disinterest in learning the truth will play a pivotal role in my case, from discovery through trial.
Investigators who fail to explore all reasonable leads also provide tremendous fodder for the plaintiff’s employment lawyer. My firm has a wrongful discharge case which alleges that our client was terminated after he complained about employees who were working “off the clock.” To support our allegation that the employer privately condoned such conduct and wished it to continue without our client’s interference, we pointed to another employee who reported to HR that a co-worker was working on his own time without getting paid. The employee even provided the time of day in which the co-worker was engaging in this conduct.
But instead of checking the videotapes in the vicinity of the co-worker’s office to confirm or refute the report, the investigator’s only “investigation” was to ask the co-worker whether he was indeed working “off the clock.” The co-worker denied the conduct — had he admitted it, he would have been subject to discipline — and the investigation ended there. The employer undertook other similar non-investigations into employees working “off the clock,” allowing us to credibly label its approach to such investigations as: “Ask but Don’t Tell.” We look forward to weaving this theme throughout trial.
An employer’s failure to adequately investigate an employee’s harassment claim is potentially fatal to its defense of such a claim. See Malik v. Carrier Corp., 202 F.3d 97, 105-06 (2d Cir. 2000); see also Hatley v. Hilton Hotels Corp., 308 F.3d 473, 475-76 (5th Cir. 2002)
An employer who does not investigate a harassment claim promptly, once it is on notice of the alleged unlawful conduct, will be similarly compromised in defending against such a claim. See “EEOC Policy Guidance on Current Issues of Sexual Harassment,” No. N-915-050. See also Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998).
Credibility Assessment Problems
I continue to be surprised by the number of investigations which reach an inconclusive finding on the ground that there is no “corroborating” evidence simply because the investigator faced a “he said/she said” scenario.
For example, I represented two principals who had accused their superintendent of schools of sexual harassment. After his investigation, the investigator knew, among other facts, the following: First, these two principals did not know each other before they complained about the conduct. Second, the conduct each complained of was strikingly similar: with no witnesses present, the superintendent hugged each woman, put his hand on her buttocks, and kissed her on the mouth.
And third, witnesses who observed these principals both before and after their private interactions with the superintendent all noted the marked change in their demeanors. Nonetheless, the investigator stated that, since no one had actually witnessed the offensive conduct (other than the victims themselves), he had no choice but to render an inconclusive finding.
It is increasingly rare for a harassment or discrimination claim to be substantiated with eyewitness or documentary evidence. These days, the perpetrator is usually savvy enough to ensure that he or she commits such conduct privately. Yet judges, jurors, arbitrators, mediators, and lawyers make credibility assessments in such situations every day. Investigators should consider the Equal Employment Opportunity Commission’s guidance on this issue and follow suit. “EEOC Policy Guidance,” supra. (“The Commission recognizes that sexual conduct may be private and unacknowledged, with no eyewitnesses. . . . In appropriate cases, the Commission may make a finding of harassment based solely on the credibility of the victim’s allegation.”)
Flawed Investigatory Techniques
Even an otherwise unbiased investigator can compromise an investigation if she fails to use neutral interrogation tactics. An investigator’s questions should be in the manner of a direct examination at a deposition: open-ended, general questions followed by more pointed questions as information is provided. The investigator should avoid leading questions that suggest the answer, as well as confrontational, accusatory questions that intimidate the witness. The investigator should also ensure that each witness feels free to leave and that there is no real or perceived impediment to doing so.
An investigator should also avoid the possibility of tainting a witness’s version of the events by first informing her what other witnesses have said or by showing her documents or audio or visual material before she recounts her version of the events. While a good investigator will tailor her approach to each witness, these general precepts should be consistently followed with all witnesses to avoid any perception that some witnesses are being treated more favorably than others.
One of the most common investigatory techniques vulnerable to criticism occurs where an investigator “spoon feeds” the information to witnesses, resulting in witness statements that are virtually identical in significant respects or have the same “voice.” Juries are particularly sensitive to such suggestive tactics and are inclined to view the employer engaged in them as being far more concerned about defending itself than about learning the truth.
Failure To Preserve Records
A failure to preserve documents reviewed or generated during the course of an investigation bolsters the ultimate finding of discrimination. See Byrnie v. Town of Cromwell, 243 F.3d 93, 110-11 (2d Cir. 2001) (“[W]hile the foregoing additional evidence might not have been sufficient in itself to defeat summary judgment, it does when coupled with the allowable inference of spoliation.”). Of course, the destruction of such documents may also give rise to an adverse inference at trial which would permit the fact finder to conclude, as did the court in Byrnie, that the evidence destroyed would have been “unfavorable to the party responsible for its destruction.”
The employer who uses an investigator who has a stake in the outcome or a personal relationship with any of the witnesses involved in the investigation does so at its peril. I have urged clients who have had reason to believe that an investigator was biased to make a record of their objections in writing to the employer, requesting a recusal of the investigator and delineating the reasons for that request. Such a record can be powerful evidence in support of an employee’s discrimination or harassment claim.
Investigations conducted by biased investigators may compromise an employer’s defense even more than no investigation at all. They convey a loud and clear message to the fact finder: the investigation was orchestrated by the employer to justify a preordained decision. Indeed, a failure to conduct a thorough, unbiased investigation may be further evidence of the employer’s discrimination and/or retaliatory intent. See Sassaman v. Gamache, 566 F.3d 307, 314-15 (2d Cir. 2009).
My firm has found that biased investigators often commit a multitude of sins in the manner in which they conduct their investigations. For example, in a recent case one of my partners tried, his client alleged she was subjected to disability discrimination, culminating in her termination, purportedly for the manner in which she handled an incident with a customer. The individual who was tasked with conducting the investigation into our client’s handling of the incident was the same individual who had made it clear that he did not believe she was legitimately disabled.
Not surprisingly, the investigation was comprised in myriad ways. The investigator failed to watch a videotape that captured the incident in question; he failed to scrutinize the testimony of two employees who were dating each other and whose stories were precisely (and improbably) aligned; he allowed another employee who had provided inconsistent versions of the event to view the videotape and change her story while not allowing our client to do the same; and he capped the investigation off by destroying the notes of his interview of our client. On summation, my partner had a field day with each aspect of this biased, highly flawed “investigation.”
The moral of this story is that it behooves employers in every way to conduct prompt, thorough, and neutral investigations into all complaints of discrimination or harassment in the workplace. •