INVESTIGATING DISCRIMINATION COMPLAINTS:
CONCLUDING THE INVESTIGATION & COMMUNICATING THE FINDINGS
June 27 – June 30, 2007
Marcia A. Mahoney
Marcia A. Mahoney, L.L.C.
Evanston, IL
I. Concluding the Investigation
The final stages of the investigation are important; they will determine how employees
within the institution and any reviewing body (like a judge or jury) will view the investigation.
A. Document Retention
1. The Investigative File. The investigator should make certain that s/he has kept a
separate file for the investigation, and that no privileged documents are in it. Also, the
investigator should take care to remove from the file any documents that relate to separate
matters. If the investigator is reviewing two related matters, documents should be duplicated,
with appropriate documentation kept in each file.
2. Documents to Include In the Investigative File. Generally, an investigator’s file
should include: any documents related to the retention of the investigator and the scope of the
investigation, a log of the investigator’s actions, any written complaint documents, interview
notes, communications (including copies of emails) to and from witnesses and to and from
decision-makers, any draft and final witness statements, any physical evidence, the investigator’s
report, documentation of any relevant discipline or other corrective action and documents
confirming that the results of the investigation were communicated to the parties.
The investigator should label and include in the investigation file copies of all documents
produced and reviewed in the investigation, including a notation of the source of the document
(i.e., “Delivered by Complainant on –date—“; “Obtained from HR on – date--.”) This should
always include a copy of the discrimination and harassment policies in effect at the time of the
complaint, as well as documents establishing the complainant’s and respondent’s knowledge of
the policy, such as policy posting records, handbook acknowledgment forms and training
documents.
One mistake frequently made by investigators is overlooking the importance of keeping a
copy of the discrimination and harassment policies and other relevant policies in the
investigation file. Such policies change over time, and the need for them, should litigation ensue,
might not become apparent for several years, at which time it might be difficult to reconstruct the
policies or versions of policies in effect at the time of the alleged incident.
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It is also helpful for the investigator to include a copy of any relevant organizational
charts. As with policies, over time, organizational charts are updated and memories fade as to the
specifics of reporting relationships at a particular point in time.
In addition to relevant policies and organizational charts, the investigator should review
and include in the file copies of any operational records, For example, if a complainant alleges
that he or she was discriminated against in compensation, the investigator might review and
retain copies of the compensation policy, performance reviews for the complainant and other
employees in the same or similar position (“comparable employees”), any notes taken during the
compensation-setting process and any documents communicating the compensation decision to
the complainant and comparable employees.
B. Deciding When the Investigative Phase Is Complete
After the investigator has completed interviews of the complainant and respondent and
reviewed relevant documents, he or she must decide whom else to interview. Generally, the
investigator should interview any employee the investigator feels is necessary for the investigator
to reach a conclusive determination whether the alleged discrimination or harassment occurred.
This will include eyewitnesses identified by the complainant and individuals who corroborate the
complainant’s or accused’s version of events.
If a group witnessed an event, it is not necessary for the investigator to interview all of
them; generally, two credible witnesses that corroborate the complainant or respondent are
sufficient. It is acceptable for the investigator to consider the effect of additional interviews,
including the impact on the parties’ and witnesses’ future working relationships and the
disruption to the institution’s operation caused by the investigation.
If the alleged conduct occurred with only the complainant and accused present, the EEOC
and courts rely on other evidence to conclude what occurred. This includes testimony from
people who saw the complainant’s demeanor shortly after the alleged incident occurred,
individuals in whom the complainant confided just after the alleged incident, and notes, diaries
and emails written by the complainant immediately following the incident. EEOC Enforcement
Guidance: Vicarious Employer Responsibility for Unlawful Harassment by Supervisors,
http://www.eeoc.gov/policy/docs/harassment.html
C. Assessing Credibility
In its 1999 guidance on investigations, the Equal Employment Opportunity Commission
emphasized the importance of credibility determinations in concluding whether discrimination
occurred and whether an institution’s discrimination and harassment policy was violated. “If
there are conflicting versions of relevant events, the employer will have to weigh each party's
credibility. Credibility assessments can be critical when determining whether the alleged
harassment in fact occurred.” EEOC Enforcement Guidance: Vicarious Employer Responsibility
for Unlawful Harassment by Supervisors,
http://www.eeoc.gov/policy/docs/harassment.html
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Factors to consider when evaluating credibility include: the inherent plausibility of the
testimony, the witnesses’ demeanor, the witnesses’ motives to falsify, physical evidence, the past
record of the accused, corroboration by other witnesses, and the investigator’s judgment, Id.
D. Determining Whether a Violation Occurred
Once all of the evidence is accumulated, interviews are finalized, and credibility issues
are resolved, the investigator should make factual findings about what occurred. Based on these
findings, a manager/decision-maker within the institution must decide whether the conduct
violated institutional policy. In some cases, the institution may ask the investigator to make this
determination. In either case, it is important that the determination focus on whether institutional
policy was violated – not the law.
In some circumstances where corroborating evidence contradictory or nonexistent, it may
be difficult for the investigator to make factual findings about what occurred. If the investigator
has reviewed all the factors for determining credibility outlined above, he or she may reach a
determination that the evidence is inconclusive. In such an instance, the investigator should
thoroughly document his or her efforts to corroborate testimony and determine credibility; it is
not sufficient for the investigator simply to rely on a disagreement between the complainant and
accused or lack of an eyewitness. Id.
E. Corrective Action
If an investigation results in a finding that conduct violated institutional policy, the
institution must take prompt action reasonably calculated to end the conduct, while protecting the
safety of the complainant, the investigator and any witnesses. Burlington Indus. V. Ellerth, 524
U.S. 742 (1988); Faragher v. City of Boca Raton, 524 U.S. 775 (1998.) According to the EEOC,
“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.” EEOC Enforcement Guidance: Vicarious Employer Responsibility
for Unlawful Harassment by Supervisors, http://www.eeoc.gov/policy/docs/harassment.html.
To determine the appropriate level of discipline, the institution should consider the
severity of the conduct, the pervasiveness of the conduct, the accused employee’s overall record,
the notice the accused employee had of institutional policy, previous discipline of the accused
and others for similar conduct and any company policy on progressive discipline. According to
the EEOC, “disciplinary measures should be proportional to the seriousness of the offense.
Mockler v Multnomah County, 140 F.3d 808, 813 (9th Cir. 1998.) If the harassment was minor,
such as a small number of "off-color" remarks by an individual with no prior history of similar
misconduct, then counseling and an oral warning might be all that is necessary. On the other
hand, if the harassment was severe or persistent, then suspension or discharge may be
appropriate.” Id.
The employer should determine the level of discipline necessary to correct the
inappropriate action. Examples could include oral and written warnings, suspension, demotion,
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transfer and reassignment and termination. If the employer takes corrective action and the
inappropriate conduct continues, the employer should impose a harsher sanction.1
The employer should take care to ensure that any discipline does not adversely affect the
complainant. For example, if it is necessary to separate the parties, then the harasser should be
transferred (unless the complainant prefers otherwise). As noted by the EEOC, remedial
responses that penalize the complainant could constitute unlawful retaliation and are not
effective in correcting the discrimination and harassment. See Guess v. Bethlehem Steel Corp.,
913 F.2d 463, 465 (7th Cir. 1990) (“a remedial measure that makes the victim of sexual
harassment worse off is ineffective per se").
Remedial measures also should correct the effects of the alleged discrimination or
harassment, and should be designed to place the complainant in the position he or she would
have been in if the alleged conduct had not occurred. For example, if the complainant alleged
discrimination in compensation, the complainant should be made whole for lost compensation,
and the complainant’s compensation should be adjusted for the future.
Finally, remedial measures should correct any gaps in understanding of institutional
policies on discrimination and harassment through training and/or individual coaching. In this
regard, if the investigator could not determine whether the alleged conduct occurred, the EEOC
recommends that the employer nonetheless undertake preventive measures, such as training,
coaching and monitoring.
II. Communicating the Investigative Findings
A. Notifying Management
The investigator should keep management apprised of his or her progress throughout the
investigation. If it was not clear from the outset of the investigation, as the investigator nears the
end of the investigation, the investigator and management should agree whether it is the
investigator’s or institution’s responsibility to conclude whether conduct violated institutional
policy. If it was not clear from the outset of the investigation, the investigator and management
should also agree whether it is the investigator’s responsibility to recommend appropriate
discipline. Finally, the investigator and management should discuss and agree on the form the
investigator’s findings should take.
B. Investigative Report
It is recommended that the investigator prepare some written summary of his or her
findings. If the alleged wrongdoing is relatively minor, the “report” could take the form of an
email or short hand-written memo to file. If the alleged wrongdoing is more serious, or will
result in discipline of the accused, the report should be more thorough, and include the
following: a summary of when and for what purpose the investigator was retained, a chronology
of events, a list of witnesses contacted, a list of documents reviewed, a factual statement of the
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For this reason, it is important that the investigator or the manager/decisionmaker check back with the complainant after the
discipline is imposed to insure that it is having the desired deterrent effect.
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alleged wrongdoing from the complainant’s perspective, the accused’s response, a summary of
corroborating evidence (identifying each source supporting each allegation and rebuttal), and the
investigator’s conclusions about what did or did not occur. Attached to the report should be any
relevant documents, including witness statements.
C. Notifying the Parties
One common mistake made by employers in discrimination and harassment
investigations is failing to inform the complainant and the accused of the conclusion of the
investigation.
It is recommended that the employer send an email or written memorandum to the
complainant documenting that: the investigation is complete, a statement summarizing the
investigator’s conclusion of whether the conduct occurred as alleged, a statement summarizing
the institution’s conclusion about whether its policy was violated, a statement indicating whether
corrective action was taken against the accused and a reminder that the complainant should
immediately report any conduct that he or she believes was retaliatory. Generally, it is not
appropriate to share with the complainant the specifics of any disciplinary action taken against
the accused. If an investigation is inconclusive, the employer might consider giving the
complainant the opportunity to provide supplemental information.
The institution should also notify the accused of the outcome of the investigation. This
usually occurs automatically when the accused is disciplined for the alleged conduct, but is often
overlooked when the investigation concludes that the alleged conduct did not occur or was
inconclusive. The institution should take care to treat the accused with dignity; it is unwise to
embarrass the employee in front of the employee’s coworkers or family. It is recommended that
the employer send an email or written memorandum to the accused documenting that the
investigation is complete, a statement summarizing the investigator’s conclusion of whether the
conduct occurred as alleged, a statement summarizing the institution’s conclusion about whether
its policy was violated, and a reminder that the accused should not take any action against the
complainant in retaliation for the complaint. If the institution’s policies allow the accused some
form of appeal, the document communicating the findings should set out the process and time
frame for appeal.
The employer should take care to avoid excessive publication of the fact of the
investigation and any finding of wrongdoing. In some cases, accused employees have claimed
that they were defamed as a result of an investigation. Generally, statements made during
investigations are covered by a qualified privilege, protecting investigators and witnesses who
make statements in good faith and for a proper purpose to someone who has a legitimate interest
or duty to receive the information. Freeman v. Bechtel Constr. Co., 87 F.3d 1029 (8th Cir. 1996)
(employer privileged to put investigative report in accused’s personnel file); Evans v. Amcash
Mortgage Co., 1997 WL 431187 (Tenn. Ct. App. Aug. 1, 1997) (employer’s attorney privileged
in making statement about accused’s discharge to another employee.)
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