American Bar Association
6th Annual Labor & Employment Law Section
Westin Peachtree Plaza, Atlanta, Georgia
November 1, 2012
Executive Behavior Run Amok: Ethical and Strategic Considerations for Counsel
“Brave” Enough to Step into a High Level Workplace Investigation
“Where to Begin: Strategic Considerations on Choosing and Retaining the
Investigator and Planning the Investigation”
Prepared by:
Julie A. Moore, Esq.
Employment Practices Group
8 Rice Street, Suite 201
Wellesley, MA 02481
Phone: 978.975.0080
Fax: 978.683.8027
JMoore@EmploymentPG.com
www.EmploymentPG.com
Employment attorneys are often called upon to oversee and conduct investigations
into various forms of employee misconduct, including harassment and discrimination.
High level executives often are the persons accused and, in those cases, extra care and
discretion are required. The stakes are high, and the investigation must be done right.
Part of the employment counsel’s duty is to determine precisely what investigative needs
exist, and to provide guidance as to engaging the right investigator, whether that is
someone from within the organization or outside.
The first question we should ask as attorneys and investigators is why we are
considering conducting or overseeing an investigation. Whether conducted in-house by
an experienced human resources professional under the guidance of counsel, by the
employer’s usual employment counsel, or by an outside investigator (either under the
attorney-client privilege cloak or not), the purpose of the investigation is to determine if
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the allegations raised have merit and, if so, what corrective and/or remedial action should
follow.
In cases involving top executives, we expect them to be held to the same or higher
standard of conduct as compared to other employees. We expect them to be role models
of appropriate workplace behavior and can expect criticism if the rules and policies are
not applied with equal force when allegations are leveled against them. Dotting the I’s
and crossing the T’s, so to speak, is even more critical when the accused is high ranking.
In many situations, investigations are legally required and, at other time, are a
matter of best practices and necessary internally. Title VII states that employers must
“take all steps necessary to prevent harassment from occurring.” Since 1999, the EEOC
has also made it clear that employers have an obligation to investigate claims of sexual
harassment. In considering the issue of whether the alleged sexual or gender-based
conduct was unwelcome, the EEOC’s “Policy Guidance on Current Issues of Sexual
Harassment” (available at http://www.eeoc.gov/policy/docs/currentissues.html) N-915050, 3/19/90, considers whether the alleged victim made a contemporaneous complaint,
which would be persuasive evidence that the sexual harassment did, in fact, occur. To
this end, the EEOC instructs that, “In investigating sexual harassment charges, it is
important to develop detailed evidence of the circumstances and nature of any such
complaints or protests, whether to the alleged harasser, higher management, co-workers
or others.” It is obviously impossible to do this without the investigation that is
undertaken being meaningful and thorough in nature.
Further elaborating on the duty to investigate in the context of remedial action, the
EEOC Guidance proscribes:
Since Title VII affords employees the right to work in an environment
free from discriminatory intimidation, ridicule, and insult (Vinson, 106
S. Ct. at 2405), an employer is liable for failing to remedy known
hostile or offensive work environments. See, e.g., Garziano v. E.I.
Dupont de Nemours & Co., 818 F.2d 380, 388, 43 EPD ¶ 37,171 (5th
Cir. 1987) (Vinson holds employers have an “affirmative duty to
eradicate 'hostile or offensive' work environments”); Bundy v. Jackson,
641 F.2d 934, 947, 24 EPD ¶ 31,439 (D.C. Cir. 1981) (employer
violated Title VII by failing to investigate and correct sexual
harassment despite notice); Tompkins v. Public Service Electric & Gas
Co., 568 F.2d 1044, 1049, 15 EPD 7954 (3d Cir. 1977) (same); Henson
v. City of Dundee, 682 F.2d 897, 905, 15 EPD ¶ 32,993 (11th Cir. 1982)
(same); Munford v. James T. Barnes & Co., 441 F. Supp. 459, 466 16
EPD ¶ 8233 (E.D. Mich. 1977) (employer has an affirmative duty to
investigate complaints of sexual harassment and to deal appropriately
with the offending personnel; “failure to investigate gives tactic support
to the discrimination because the absence of sanctions encourages
abusive behavior”)
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When an employer receives a complaint or otherwise learns of alleged
sexual harassment in the workplace, the employer should investigate
promptly and thoroughly. The employer should take immediate and
appropriate corrective action by doing whatever is necessary to end the
harassment, make the victim whole by restoring lost employment
benefits or opportunities, and prevent the misconduct from recurring.
Disciplinary action against the offending supervisor or employee,
ranging from reprimand to discharge, may be necessary. Generally, the
corrective action should reflect the severity of the conduct. See
Waltman v. International Paper Co., 875 F.2d at 479 (appropriateness
of remedial action will depend on the severity and persistence of the
harassment and the effectiveness of any initial remedial steps).
Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10, 44
EPD ¶ 37,557 (5th Cir. 1987) (the employer's remedy may be “assessed
proportionately to the seriousness of the offense”). The employer
should make follow-up inquiries to ensure the harassment has not
resumed and the victim has not suffered retaliation.
See also Watson v. Blue Circle, Inc., 324 F.3d 1252 (11th Cir. 2003) (in which issues of
adequacy of investigation of harassment complaints by female cement truck driver
resulting in reversal of district court’s summary judgment in favor of defendant
employer); Hatley v. Hilton Hotels Corp., 308 F.3d 473 (5th Cir. 2002) (employer’s
investigation of plaintiff’s complaints of harassment deemed insufficient to overcome
having ignored similar, past complaints, resulting in appellate court’s refusal to overturn
jury award for plaintiff); Malik v. Carrier Corp., 202 F.3d 97 (2d Cir. 2000) (holding that
employer’s investigation of sexual harassment complaint is required by law).
EEOC regulations are also a resource on an employer’s duty to promptly
investigate allegations of sexual harassment. 29 C.F.R. Sect. 1604.11(d) (“With respect
to conduct between fellow employees, an employer is responsible for acts of sexual
harassment in the workplace where the employer ... knows or should have known of the
conduct, unless it can show that it took prompt immediate and appropriate corrective
action.”) See also Crawford v. Metro. Gov’t of Nashville & Davidson Cty, Tenn., 555
U.S. 271, 278 (2009) (Employers are… subject to a strong inducement to ferret out and
put a stop to any discriminatory activity in their operations as a way to break the circuit
of imputed liability”).
Once it has been determined that an investigation is needed, a plan needs to be
implemented. The first consideration is who the appropriate person is to act as
investigator. This paper will address how to get started in an investigation, which
includes selecting the right person to investigate, documenting that retention to include
the scope of services to be provided, and considering interim measures to take. Initial
considerations also extend to strategizing and planning the investigation, to include issues
such as creating and maintaining a file, ensuring that confidentiality is maintained to the
greatest extent practicable, coordinating with a point person within the organization to
facilitate logistics and process issues, identifying documents and other potential evidence
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to gather or preserve, and notifying those involved and potential witnesses of their
anticipated involvement and expected cooperation.
Promptness is a cornerstone of getting started in an investigation. The EEOC’s
"Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors," (available at http://www.eeoc.gov/policy/docs/harassment.html), 915.002,
6/18/99 ("Guidance") is an excellent resource for investigators. The Guidance states that
fact-finding investigations must be launched "immediately," relying on the following
case law: Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)
(employer’s response prompt where it began investigation on the day that complaint was
made, conducted interviews within two days, and fired the harasser within ten days);
Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (employer’s
response to complaints inadequate despite eventual discharge of harasser where it did not
seriously investigate or strongly reprimand supervisor until after plaintiff filed charge
with state FEP agency), cert. denied, 513 U.S. 1082 (1995); Saxton v. AT&T, 10 F.3d
526, 535 (7th Cir 1993) (investigation prompt where it was begun one day after
complaint and a detailed report was completed two weeks later); Nash v. Electrospace
Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) (prompt investigation completed within one
week); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir.
1992) (adequate investigation completed within four days). The amount of time it takes
to conclude the investigation, however, necessarily depends on the particular
circumstances, such as the number of people involved, the extent of the allegations, etc.
A.
Selecting the Investigator
Determining who should investigate the complaint is the primary consideration an
employer must make at this juncture, after being notified of a possible violation of policy.
The key factors to consider in selecting an appropriate investigator are experience and
objectivity. The employer may have someone from within the organization conduct the
investigation or someone from outside the organization. Advantages and disadvantages
exist with both options.
Under federal civil rights law, an employer is exposed to liability where it fails to
investigate or fails to properly investigate a discrimination complaint. A recent
Massachusetts federal court case clearly illustrates the importance of selecting an
appropriate investigator as part of that proper investigation.
In McLaughlin v. National Grid USA, 2010 WL 137814 (D. Mass. 2010), the
United States District Court for the District of Massachusetts examined the claims of the
plaintiff, Manch McLaughlin, that National Grid retaliated against him by conducting a
sham investigation after he filed an internal complaint of racial harassment. Mr.
McLaughlin, who is African-American, had been a National Grid employee for thirty
(30) years. In 2005, National Grid posted a position for a Gas Operations Supervisor in
Glen Falls, New York, and Mr. McLaughlin applied. Of the candidates interviewed, Mr.
McLaughlin was ranked the lowest. A Caucasian man was selected for the position
instead. Mr. McLaughlin was advised that he was not selected due to his lack of
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experience and his poor performance during the interview process and, as expected, he
disagreed.
A couple of months later, National Grid posted two additional open Gas
Operations Supervisor positions in another New York location, for which Mr.
McLaughlin again applied. This time, Mr. McLaughlin was not even selected for an
interview. The company hired two Caucasian employees to fill those slots. The
company maintained that the individuals who were selected were more qualified than Mr.
McLaughlin. Once again, Mr. McLaughlin challenged the company’s choices, asserting
that he was equally, if not more, qualified for the positions than those who were selected,
and, at the very least, possessed the necessary qualifications to be granted an interview.
Subsequently, Mr. McLaughlin filed a complaint with the Human Resources
Department concerning the company’s decision not to interview him for the three (3)
positions he had sought. He sent a letter to Wanda Grace, the Manager of Labor
Relations, outlining his concerns. Ms. Grace, together with Dennis Flood in Human
Resources, was the investigator. Mr. McLaughlin was troubled that Mr. Flood
participated in the decision not to hire him for the Glens Falls job, thus felt it was wrong
that he was involved in the investigation that followed. It is unclear if he voiced his
concerns at the time the investigation commenced or just after the fact; the company’s
records of its investigation were incomplete.
In addition, at the close of the investigation, Ms. Grace and Mr. Flood met with
Mr. McLaughlin and, according to Mr. McLaughlin, Ms. Grace (who is African
American) began the meeting by saying, “Mr. McLaughlin, I’m just gonna tell it to you
like it is…. Every time black people don’t get the position that they think they deserve,
the first thing they cry is discrimination.” Though Ms. Grace essentially admits to
making such a statement, she denies any negative implications.
Mr. McLaughlin filed a charge of discrimination with the EEOC, and an integral
part of the charge was that the investigation was an independent discriminatory act under
Title VII and Section 1981. Interestingly, National Grid did not argue during litigation
that a sham investigation cannot qualify as an adverse employment action. Mr.
McLaughlin’s claim was premised on two central facts: (1) that Dennis Flood was an
inappropriate choice as investigator, as an alleged conflict of interest existed because Mr.
Flood has already been involved in the decision not to hire Mr. McLaughlin for the Glens
Falls job, and (2) Ms. Grace’s statement that black people “cry” discrimination when they
don’t get positions that they think they deserve. Mr. McLaughlin asserted that these facts
evidenced bias on the company's part.
Mr. McLaughlin subsequently filed his complaint in federal court, and National
Grid moved for summary judgment. The court stated, “A jury might reasonably infer that
an investigation was not independent or valid if it were conducted by a person who
participated in one of the challenged decisions.” Moreover, the court found that Ms.
Grace's comments could be problematic, even if an “innocent explanation” existed. As a
result, the court ruled that Mr. McLaughlin was entitled to a trial on this portion of his
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discrimination claim (and dismissed on summary judgment the remaining failure-topromote claims). See also Bernstein v. Board of Educ. of School Dist. 200, 191 F.3d 455
(7th Cir. 1999) (employer’s failure to investigate workplace harassment claim can form
the basis for Title VII discrimination suit). His retaliation claim also survived summary
disposition.
The Massachusetts court found unpersuasive National Grid’s argument that it
followed its regular policies and procedures and, further, that it was appropriate to utilize
Dennis Flood because he had experience in investigating complaints. The company had
relied on the decision of Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006),
for the proposition that an employer is not liable for discrimination where the
investigation was reasonable, the employer heard the complaining party’s side of the
story, and the employer determined that the accused harasser was more credible.
The underlying legal briefs filed by Mr. McLaughlin proved interesting, as he had
argued that the investigation was “fraudulent,” that Ms. Grace and Mr. Flood were
“incompetent” investigators, and that Mr. Flood’s role in investigating was “the
equivalent of demanding that [he] find himself guilty of discriminatory activities.”
Calling it a “ruse,” Mr. McLaughlin criticized National Grid for failing to expend the
“time, manpower, or risk of an adverse finding that a legitimate investigation would have
entailed.”
Lessons learned from this case are obvious to the seasoned investigator, but many
large national companies like National Grid still fail to understand the importance of
choosing the proper investigator at the outset of an investigation. An employer should
ensure that both the accused and accuser(s) have no credible reason to believe that the
investigator cannot carry out his or her responsibilities in a fair and objective manner.
1.
Selecting an In-House Investigator
In most cases, having an employee of the organization investigate, such as a
human resources representative, general counsel or senior manager, can provide several
advantages. The person, first of all, is already aware of the organization’s business and
may have some understanding of the parties involved. The person should be intimately
familiar with organization policies and procedures that need to be followed. The person
is on-site and, depending on other priorities and schedules, may be available to
commence the fact-finding right away. There are disadvantages, however.
If an in-house employee investigates, the person must possess the necessary skills,
attributes and objectivity in order to ensure a fair investigation. Reporting relationships,
biases and personal relationships must be examined. Where the person accused is a high
ranking executive, this issue becomes critically important. The investigator must truly be
neutral and, as important, the complaining party and the person accused must also
perceive that neutrality exists. Further, the investigator must be perceived as someone
who can competently and equitably interview witnesses and reach appropriate factual
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conclusions. Clearly, selecting an individual who has a vested interest in the outcome of
the investigation is ill advised.
The in-house investigator must possess training and experience to investigate. If
the person has not received any training on how to conduct an investigation, that is
problematic. Investigations are complex and must be conducted the proper way, as
dictated by various case law, EEOC guidance and other regulations. If the investigator
makes inappropriate comments during the investigation, fails to give appropriate
warnings, such as against retaliation, or omits certain assurances, such as confidentiality
to the extent possible, the investigation will be compromised.
Finally, the investigator must be able to conduct the investigation promptly.
Accordingly, the investigator must essentially “drop everything” in order to interview
witnesses and find out what actually occurred. The investigation must be the priority for
the investigator.
2.
Selecting a Third Party Investigator
In many situations, employers properly choose to use a person from outside the
organization to investigate the complaint. When the complaint is against a high level
executive or when the allegations are complex or have significant legal consequences, an
outside investigator is often the best choice. Legal consultants, human resource
consultants and even legal counsel are often asked to act as investigators.
Many advantages exist for using an outsider. First, assuming there is no conflict
of interest or prior relationship of any significance, the outside investigator will be
perceived to be completely independent and unbiased. Also, the investigator chosen will
have particular expertise and experience in conducting investigations, so that the proper
questions will be asked and other pertinent information sought. With an experienced
investigation, the record created and any report generated often is often of a higher
quality and will assist in risk-management efforts, should any litigation follow. The
investigator should be well poised to testify in court and otherwise reflect the
professionalism and show that the investigation complied with reasonable industry
standards.
With the high level executive, traits especially important in the investigator are
confidence and the ability to take control and lead the interview. Executives are used to
being in charge and leading meetings. In an investigation, however, it is the investigator
who sets the tone and controls the questioning. The investigator cannot be timid.
B.
The Retention Letter
Where an outside investigator is retained, the investigator and the organization
should articulate the parameters of the investigation. The issues to address include the
investigator’s role as a factfinder, and one who may be charged with making decisions as
to whether a statute or the organization's policies or practices have been violated and
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making recommendations as to corrective or remedial measures. The letter should
outline the tasks that the investigator will undertake. Issues of confidentiality,
indemnification, work product and attorney-client privilege should be discussed and
agreed upon, as should the investigator’s fees and related costs, the investigator’s
participation in the event of litigation, the internal contact person within the organization,
and the individual(s) to whom the investigative report, if requested, should be addressed.
All of these details should be committed to writing in the retention letter.
Examples of engagement letters are attached as Exhibit A.
1.
Investigator’s Role and Scope of Services
The retention letter should clearly articulate the investigator’s primary role in the
investigation as a fact finder, and also make clear whether it will be the role of the
investigator or the employer to make decisions as to whether statute or the organization's
policies or practices have been violated. Where investigating a harassment case, for
example, the investigator must make clear that he or she will not offer any legal
conclusions as to whether a hostile environment existed or whether sexual harassment
had otherwise taken place.
The letter should also clearly state whether the investigator’s role will include
making recommendations regarding corrective or remedial measures, where appropriate.
Examples of measures that employers may utilize to stop harassment or other
inappropriate workplace conduct and to ensure that it does not occur include verbal or
written warning or reprimand; transfer or reassignment; demotion, suspension or
discharge; reduction of wages; training or counseling of the harasser to ensure that he or
she understands why his or her conduct violated the employer’s anti-harassment policy;
and monitoring of the harasser to ensure that the harassment has ceased. Other measures
may be called upon to rectify the negative effects of harassment, if that is in issue,
including restoration of leave taken because of the harassment; expungement of negative
evaluation(s) in an employee’s personnel file that arose from the harassment;
reinstatement; an apology by the harasser; monitoring treatment of employee to ensure
that he or she is not subjected to retaliation by the harasser or others in the workplace
because of the complaint; and correction of any other harm caused by the harassment
(e.g., compensation for losses).
The retention letter should also address the issue of confidentiality. It should state
that the investigation will be kept as confidential as possible, due to the sensitivity of
topics that will likely arise and relationships at issue. Given the recent NLRB decision of
Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro,
Case 28-CA-023438, 358 NLRB No. 93 (July 30, 2012), the investigator and employer
must carefully consider what is said to interviewees about confidentiality.
Where the investigator’s communications are directed to the employer’s legal
counsel, the retention letter should specify that such communications will be protected
under the attorney-client privilege. If the investigator is performing his or her
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investigative duties as an attorney, the retention letter should specify that all
communications, work product, and the final investigative report will be protected from
disclosure pursuant to the attorney-client privilege, unless waived by the client.
The letter should state that the investigator will strive to conduct and conclude the
investigation as promptly as possible, and should also address the possibility that
information regarding other possible inappropriate workplace conduct, or supervisors’
response to such conduct, may come to light during the course an investigation. While
this information may not have been part of the initial allegations made by the
complaining employee, it may nevertheless become relevant to the investigation (a
situation sometimes referred to as “issue creep”). An example of this can be seen in a
sexual harassment investigation, where Employee A alleges that he was sexually harassed
by Employee B. During the investigation, the investigator learns from three (3) other
employees who are interviewed that they also claim to have been harassed by Employee
B and, in fact, told their supervisors, but nothing was done to stop the harassment.
The investigator should always anticipate that the direction of the investigation
may need to be adjusted or revised as the investigation progresses. Open communication
must be maintained throughout the process.
The retention letter should also memorialize the parties’ agreement that the
investigator will exercise his or her independent judgment to make whatever findings the
investigator deems warranted based on the evidence developed in the investigation.
Further, it should state that the parties’ agreement as set forth in the retention letter is not
dependent on the investigator making or failing to make any particular credibility
determination, finding of fact, or conclusion. The letter should also state that the
investigator is unaware of any conflicts of interest based on the information provided, and
require that the organization immediately notify the investigator if it later learns of any
additional parties with an interest in the matter being investigated so that the investigator
may ensure that no conflict of interest arises.
2.
List of Tasks to be Undertaken By Investigator
Some investigators and clients prefer to articulate in the engagement letter the
particular tasks contemplated and agreed on, making specific reference to the relevant
documentation and information - and that the investigator is granted access to all of it.
This may include the following:

Review all pertinent correspondence, notes, complaints, etc. that relate to the
allegations of inappropriate behavior.

Review relevant policies and procedures.

Review relevant personnel documents and other employment records, as
appropriate.
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
Interview the complaining employee(s) and those accused of inappropriate
workplace conduct, as well as interview employees or witnesses who have
knowledge of the allegations, the defense, or any possible motive.

Identify and ascertain any other corroborating evidence to assist in the factfinding process.

Evaluate and resolve conflicting factual information.

Draft a summary of each witness interview, if requested.

Prepare a written report of investigative findings, which may include the
following information:
o A statement of the allegations and identification of documents reviewed
and witnesses interviewed.
o Statement of any defenses, denials, and other relevant information learned.
o Factual findings supporting each issue.
o Identification of any conflicting factual information.
o The factual conclusions reached after resolving any credibility issues.

Provide a determination as to any policy or statutory violations, if requested.

Provide recommendations pertaining to corrective or remedial action, if requested
and appropriate.
3.
Costs, Fees and Indemnification
The letter should memorialize the parties’ understanding that payment for the
investigator’s services and expenses is in no way contingent upon the outcome of the
investigation. It should also set forth the agreed upon fee, whether flat fee or an hourly
rate, and specify any retainer to be paid to the investigator.
Where the parties have agreed upon an hourly rate arrangement, the letter should
enumerate the types of the investigator’s services for which time will be charged, such as
time spent interviewing witnesses, writing the report of the findings, performing any
necessary research, as well as time spent on telephone calls relating to the investigation,
including calls with the employer, witnesses, potential witnesses, or counsel representing
any of the parties. A separate hourly rate may be charged for travel time, and this should
be specified in the letter as well.
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In the event of a flat fee arrangement, the letter should state that the fee
contemplates the completion of the tasks outlined therein, and articulate the parties’
agreement to communicate closely throughout the investigation and, if the scope of the
work far exceeds what was discussed, to revisit the fee arrangement.
The letter should also set forth the fee arrangement for any time spent by the
investigator preparing for and attending any depositions and providing testimony at any
administrative agency or court. It should further specify the employer’s agreement to
provide a defense and indemnification to the investigator and his or her business entity in
the event he, she or it is named as a respondent or defendant in any legal proceeding that
stems from the investigation. The letter should memorialize an agreement to pay the
investigator the then current hourly rate for all time spent in connection with any such
litigation, including but not limited to time spent at a deposition or testifying at trial.
Investigators may also want to add a provision that an investigator's attorney’s fees are
covered if the investigator is later sued.
In addition to addressing fees, the letter should memorialize the client’s
agreement to reimburse the investigator for costs and expenses he or she may incur in the
course of the investigation, such as for long distance telephone charges, courier and other
delivery fees, postage, photocopying and other reproduction costs, and travel costs such
as mileage reimbursement and parking.
C.
Strategizing and Planning the Investigation
Conducting internal investigations is a delicate matter, particularly involving top
executives. In many cases, legal counsel should be consulted upon receipt of the
complaint to ensure that the investigation is being handled, from the outset, pursuant to
organization policy, following all legal guidelines and regulations, and consistent with
industry standards. Because the stakes can be high when an employer is called to
investigate claims of harassment and other suspected misconduct, such as theft or
discrimination, the utmost care must be given at all times.
The investigator should assess the situation and prepare a strategy for conducting
an investigation as promptly as possible.
The investigation must keep in mind that the investigation must be conducted
consistent with any particular statutes and collective bargaining agreements, as well as
internal policies and procedures. Following policies is critical. For example, in Madeja
v. MPB Corp. d/b/a Split Ballbearing, 149 NH 371 (2003), the New Hampshire Supreme
Court ruled that there was evidence from which a reasonable jury could have found that
the defendant’s investigation and remedy were neither reasonable nor adequate under the
circumstances, stating:
There was also evidence that despite the defendant’s policy
requiring human resources involvement in all sexual harassment
complaints, human resources was never contacted regarding the
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plaintiff’s complaint. Although [Manager #1] testified that he and
[Manager #2] discussed the plaintiff’s complaint with [HR],
[HR] testified that he had no recollection of these discussions. [Manager
#3] testified that human resources never contacted him about
the plaintiff’s complaint.
Clearly, courts emphasize the importance of an employer following the letter and
spirit of any policy that it maintains surrounding investigating complaints.
1.
Considering and Implementing Interim Measures
The EEOC's Guidance relating to sexual harassment advises employers that it
may be necessary to undertake interim measures at the outset of an investigation to
ensure that further harassment does not occur. The same type of interim measures may
be taken regarding other forms of harassment, discrimination and similar misconduct.
Accordingly, the investigative plan should commence by determining if such interim
steps are necessary. The purpose is to ensure that the complaining party is protected from
continued exposure to possible inappropriate behavior and retaliation. Fears of retaliation
usually run deeper when the accused is a high ranking executive, given the power that he
or she wields, which can affect job security and terms or conditions of employment. The
complaining party and witnesses naturally can be fearful of participating in such a highstakes investigation. An employer should carefully consider the steps to take, ensuring
that the rights of all involved are taken into account.
Factors to be considered in determining whether interim measures are needed
include, but are not limited to, the following:

the expressed wishes of the complainant;

the nature and extent of the allegations;

the personal safety of the complainant;

the number of complainants;

whether the alleged wrongdoing is of an ongoing nature;

the behavior of the alleged wrongdoer; and

whether the accused wrongdoer has an alleged or actual history of
engaging in misconduct.
If, based on a review of this information, the employer determines that interim
action is advisable, the approach most often utilized is to separate the employees. In
short, the following options should be on the table:

Placing the alleged wrongdoer on administrative leave;

Placing the complaining party on administrative leave, if requested;
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
Transferring the alleged wrongdoer, or the complainant if he or she
requests, to a different area/department or shift so that there is no
further business/social contact between the two;

Instructing the alleged wrongdoer to stop the complained-of conduct;
and

Eliminating the alleged wrongdoer's supervisory authority over the
complainant.
Where the employees work in the same location and it would not be possible to
accomplish a separation by re-assignment, consideration should be given to placing the
accused employee on paid or unpaid suspension and removed from the premises, pending
the outcome of the investigation. This can be complicated, however, with a high-ranking
executive. A careful balance must take place so that business is not unnecessarily
interrupted. Supervisory staff should be notified of the importance of protecting the
complaining employee from possible retaliation.
Where the complaining party leaves the workplace on his or her own volition and
expresses a desire to stay away from the site until the situation can be resolved, he or she
should be placed on paid leave of absence pending the outcome of the investigation. This
is not the best option and should be used only in situations where the complaining
employee expresses a desire and/or has a compelling reason to remain away from the site
pending the investigation.
Another situation in which such an interim measure may be appropriate is where
stalking, violence or threats of violence have been alleged, or where there are other
indications that the accused employee may be mentally unstable. In these cases, the
complaining employee may be offered a brief temporary assignment in another business
location, or time off with pay. As a general matter, however, an employer’s removal of
any individual from the workplace pending completion of the investigation should be
limited to the individual accused of serious misconduct.
In all instances, supervisory/management staff must be reminded of the
organization’s zero-tolerance policy against retaliation of any kind and advised to take all
possible steps to avoid retaliatory conduct.
Care should be taken not to harm or penalize in any way the complaining party, so
long as the complaint is believed to be made in good faith. Simultaneously, the accused’s
rights must be respected. No presumption whatsoever should be made at the outset of an
investigation that a policy violation or other misconduct has occurred.
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2.
Creating and Maintaining a File
The investigator should create and maintain a confidential investigative file, such
as a binder or redwell, separate from personnel files. The file should allow for one
central place to keep organized all documents and other materials related to the
investigation. This may include but not be limited to interview notes, relevant
employment documents, journals, recordings, photographs, voice mails, e-mails,
telephone records, or other items pertaining to the allegations or the investigation into
them.
3.
Ensuring that Confidentiality Is Maintained to the Greatest
Extent Practicable
The employer should ensure that the investigation is kept as confidential as
possible, by communicating information about the investigation only to those who need
to know about it. An employer should not promise absolute confidentiality to the
complainant, the alleged wrongdoer or other witnesses, because such a promise may
obstruct the employer's ability to conduct a fair and thorough investigation. Generally,
the complainant and the alleged wrongdoer should be kept informed of the status of the
investigation during the process.
4.
Coordinating with a Point Person within the Organization
to Facilitate Logistics and Process Issues
The employer, perhaps in conjunction with the investigator, should determine
who from the organization will act as a point person to assist in the coordination of
witness interviews and assembly of any additional information that may be needed as the
investigation continues. Issues such as where, when, in what order, and the like must be
discussed.
The organization and investigator should caucus as to whether it is advisable to
have a third party present for any or all witness interviews. Union and collective
bargaining issues must be considered as well.
5.
Identifying Documents and Other Potential Evidence to
Preserve
The organization may see the immediate need to take steps to preserve evidence.
For example, the organization may determine that emails or other electronic evidence
will need to be saved and preserved. Consideration at the outset of an investigation of
these issues is critically important.
6.
Gathering Preliminary Information
Human resources is often the key conduit of information to the investigator.
Others may play a role as well. The investigator should receive as much information as
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possible by the supervisor or manager who reported the matter, from the complaining
party, or from any other third party who made the complaint known. Initial inquiries
must focus on the identities of the alleged victim, the complaining party, if different, the
accused, and any witnesses or others who may have knowledge of the alleged
improprieties or any defenses. The investigator may also likely be in contact with
members of the executive team or other managers or supervisors to obtain relevant
background information. Sometimes the Board of Directors of General Counsel is
involved in cases against high level executives. Background information about the
professional and personal relationships, if any, should be gathered.
7.
Contacting the Complaining Party and Alleged Wrongdoer
The employer or investigator should contact the complaining party and advise that
an investigation will be conducted by the investigator, that the complaint is being taken
seriously, that misconduct in the workplace is not tolerated, and that he or she will be
interviewed in short order. The organization should ask for the complaining party's
cooperation, emphasize confidentiality consistent with the law, and articulate its policy of
non-retaliation against employees who participate in a workplace investigation.
A similar communication should be made with the person accused, advising that a
complaint has been made and that an investigation will be underway. Similar
admonishments about cooperation, confidentiality (consistent with the law) and nonretaliation should be given. Reference to internal policies should be made as well. The
timing of when to tell the accused executive will be fact dependent and should involve a
careful assessment of the circumstances.
Arrangements should be made then, if possible, to schedule the witness interview.
If not, the investigator should advise that he or she will be back in touch shortly to
schedule meetings.
8.
Reviewing Materials
Next, the investigator should review any documentary evidence or other materials
that may exist. This includes relevant documents from the personnel files of the
complaining party and accused; any notes or writings prepared by any supervisor or
manager about the incident; documents, emails, graffiti, offensive material or tangible
evidence of any kind that may pertain to the allegations or defenses; and any harassment
complaint form or other written complaint of the complaining party that may exist. The
investigator should also verify that any offending material had been removed or
permanently covered up. A review of materials may also include organization or
hierarchy charts, workforce profiles, comparator information, payroll records, time cards
or time sheets, training records and related documentation, phone records, emails, and
voicemails.
Safeguarding potential evidence to prevent any spoliation issues is critical.
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9.
Preparing for Witness Interviews
Preparation for witness interviews is now underway. Based on the information
received to date, the investigator should begin to draft witness outlines. Next, a location
should be identified as to where witness interviews should be conducted, with
consideration given to preserving confidentiality of all involved and ensuring that
witnesses feel at ease to speak. It is crucial to plan ahead to ensure a comfortable, nonintimidating environment for interviews that will facilitate communication between the
investigator and the person being interviewed.
Where the investigation requires interviewing employees at multiple business
locations, the investigator should discuss with the employer whether he or she will travel
to satellite locations to conduct interviews, or whether all interviews will be held at
headquarters. The latter arrangement may require some employees to travel and thus
spend more time away from their desks. Whether meeting at a single or multiple
locations, avoid meeting in the office of the person being interviewed, or in the office of a
high-level executive. Instead, choose a quiet conference room or consider meeting at a
nearby off-site location for privacy. Most individuals, even if they are amenable to being
interviewed, would rather avoid having their co-workers see them or hear what is taking
place.
Consider making arrangements to set up the interview room so that it resembles a
regular business meeting, perhaps including a beverage and a light snack. Also consider
seating arrangements, which can determined whether the person interviewed feels at ease
rather than intimidated or “boxed in.”
Some investigators prefer to tape record each interview and have it transcribed. If
so, ensure that working equipment is available.
Special issues can arise as well. Accommodating an individual with a disability
may be needed. Also, an investigator may anticipate interviewing individuals for whom
English is not their primary language. In that case, the services of a certified translator
should be secured. The same criteria that the employer should apply in selecting an
investigator-- experience and objectivity-- should be applied when selecting a translator.
As a cost savings measure, the organization may offer to have present at the interview a
bilingual employee who is conversant in English and the language spoken by the
interviewee. This is not recommended, however. By hiring an experienced, objective
translator, the investigator ensures that the translator is furthering the organization's
interest in conducting a thorough and objective investigation. By relying on the
interpretative skills of a fellow employee or internal representative, the investigator
relinquishes necessary control over the interview and the accuracy and thoroughness of
the information gleaned from it.
"Where to Begin” entails quite a bit of work, and being knowledgeable about the
issues as well as being organized, practical, and flexible are key.
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