CONDUCTING EFFECTIVE INTERNAL INVESTIGATIONS
CONDUCTING AN EFFECTIVE DISCRIMINATION/ HARASSMENT INVESTIGATION:
HOW TO AVOID THE INVESTIGATION BEING USED AS A "SWORD" AGAINST THE
EMPLOYER IN SUBSEQUENT LITIGATION
June 22 – June 25, 2008
Jill L. Rosenberg
Orrick, Herrington & Sutcliffe LLP
New York, New York
I.
Introduction
Employers generally understand the need to conduct investigations of employee
complaints of discrimination, harassment and retaliation. However, simply conducting an
investigation may not be enough. Courts, arbitrators and juries are increasingly scrutinizing the
promptness, thoroughness and effectiveness of an employer's investigation. For example, in
harassment cases, employers have a duty to take prompt remedial action upon receiving notice of
a complaint. In discrimination and retaliation cases, the adequacy of the employer's investigation
may be an important factor in mitigating against an award of punitive damages.
The goal for any employer is to avoid having the investigation – typically an important
weapon in defending a discrimination or harassment claim – be used as a "sword" against it.
This outline will highlight some of the pitfalls faced by higher education employers when
investigating employee complaints of discrimination and harassment and provide practical
guidance for conducting effective investigations of these sensitive issues.
II.
To Investigate, Or Not
A. Employers should investigate all complaints of harassment, discrimination or
retaliation based on a protected characteristic.
B. Complaints need to be investigated even when a complainant requests that no action
be taken, the complaint is anonymous, or the complaint seems frivolous.
III.
Investigator Today, Witness Tomorrow
A. There are many factors that go into selecting an appropriate investigator. One
consideration is that the investigator may become a witness for the employer.
B. Consider how the investigator will fare as a witness. Does he/she have the requisite
neutrality, experience, communication skills and presence to be an effective witness and
withstand cross-examination?
C. If counsel (internal or outside) is selected to investigate the complaint, be clear up
front as to counsel’s role. Is the investigator strictly acting as a fact finder? Will he/she
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be offering legal advice or helping to make decisions as to the outcome? Documenting
up front the investigator's role will be critical to identifying and preserving privileged
communications.
D. If outside counsel is selected to investigate an employee complaint, that counsel and
his/her firm will likely not be an appropriate choice to represent the employer in a
litigation arising from the employee complaint.
IV.
Conducting a "Prompt" Investigation
A. While it is important to promptly investigate employee discrimination and harassment
complaints, delays are inevitable. The complaining party may need additional time to
provide a written statement (if requested) or gather relevant evidence. Witnesses may be
unavailable or need additional time to consult with their own counsel.
B. It is recommended that the investigator keep a log of his/her contacts and document
the reason for any delays. Keep the complaining party informed as well of any delays.
V.
Interim Action
A. Employers should consider whether interim corrective or other action is necessary
while the complaint is being investigated.
B. Options include placing the complaining party on a leave of absence, suspending the
accused or placing him/her on administrative leave and separating the complaining party
and accused by reassigning one or both of the parties.
C. However, before taking any action, consider whether it will be perceived as
retaliation and what message it may send to co-workers.
VI.
Who To Interview
A. Determining who to interview involves a careful balancing of the need to be thorough
against privacy and confidentiality concerns. In most cases, conducting a thorough
investigation will require that, at a minimum, the complaining party and accused be
interviewed.
B. If there is any dispute as to what occurred, identifying and interviewing eyewitnesses
will be important. Frequently in harassment cases, there are no eyewitnesses. However,
there may be individuals who heard about the events in question contemporaneously from
one of the parties or observed the parties shortly after the events at issue. These
individuals may be able to shed light on a party’s demeanor or credibility.
C. At times it may be appropriate to interview former employees or non-employees.
Consider privacy/confidentiality concerns. If a decision is made not to interview a
former or non-employee who is identified as a potential witness, document the reason for
not interviewing that individual.
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D. Depending on the circumstances, it may be appropriate to interview other potential
victims.
VII.
Interview Considerations
A. Will the parties be permitted to have counsel present? This is often a case by case
determination. However, it may be difficult to defend later on the exclusion of counsel
especially when outside counsel is conducting the investigation on behalf of the
institution.
B. Interviewers need to carefully balance the desire to appear concerned and empathetic
with the need to remain neutral and avoid unintended admissions.
C. Although the conduct of the complaining party may be relevant, be careful not to turn
the investigation into an investigation of the complaining party.
D. Avoid reaching legal conclusions. The issue is whether university policy has been
violated.
VIII. Notetaking
A. Notes should be legible, detailed and dated. It may be several years later when the
investigator is called to testify about the investigation. The investigator’s competence
and credibility may be called into question if he/she cannot read or recall what was
written.
B. Having dual notetakers may be useful in obtaining a more complete record, but
creates the risk of having inconsistent information.
C. Interview notes should be factual and avoid opinions, mental impressions, and
conclusions. Also, use the witness’ words if possible. Avoid putting words in the
witness’ mouth.
D. Review and edit notes upon completing each interview to make sure they are
accurate, complete and understandable.
E. If counsel (internal or external) is conducting the interviews, separate the interview
notes from notes concerning any legal advice.
F. When preparing a report, make sure the report is consistent with, and supported by,
the notes.
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IX.
The Investigation File
A. Retain the final report and the interview notes. It is recommended that draft reports
not be retained.
B. Separate out factual from legal advice documents.
C. The investigation file should also contain relevant policies, copies of any corrective
actions, and other documents reviewed or relied upon in the investigation.
X.
Follow up with the Parties
A. Tell the complaining party and accused of the outcome. Remind both parties of the
prohibition on retaliation.
B. Follow up periodically with the complaining party to see how he/she is doing. Find
out if there have been any further issues or potential retaliatory conduct.
C. Follow up periodically with the accused to make sure he/she is complying with any
action plan or other terms.
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