Conducting Complex Workplace Investigations
October 2, 2018 | Curran Leahy-Lonigro, Esq.
Image Credit: Wall Street Journal
Last week, with the Kavanaugh hearing looming, I addressed some of the basics of conducting workplace investigations. But, as I wrote then and reiterate now, investigations are often far from basic. How should you handle some of the complex issues that arise during an investigation? How can “he said/she said” be addressed? What if the complaining party is unwilling to further participate in the investigation? Can you consider credibility? What if a significant amount of time has passed between the alleged event and the reporting? Let’s consider each.
How can “he said/she said” be addressed?
Judge Kavanaugh is 100% certain it wasn’t him. Ms. Ford is 100% certain it was him. We all know that “he said/she said” implies a situation in which two parties offer conflicting reports of what happened and indicate that there were no witnesses. If you’re conducting an investigation and your first steps result in “he said/she said” (which I’m using to broadly imply any situation where two parties, regardless of gender, offer conflicting reports), what should you do? Investigate more. “He said/she said” should not be treated as a dead end. Even if no one witnessed the specific event being alleged, someone may have witnessed other events, interactions, or conversations. Someone may have information that demonstrates a possible pattern or that goes to the credibility of one party or both parties. You’ll want and need to be strategic and purposeful about who you interview and the questions you ask so to avoid leading witnesses and to ensure confidentiality of the parties. But, with the right plan and the right line of questioning, you can appropriately and productively broaden an investigation beyond “he said/she said.”
What if the complaining party is unwilling to further participate in the investigation?
It was initially unclear as to whether Ms. Ford would willingly participate in the senate hearing. What if she had refused to participate? What if an employee came to you and made an allegation but then said she wanted no further involvement? What should you do? Talk to the complainant. Explain that you will respect her wishes. Explain that you will conduct a thorough investigation. Work with her to ensure the company addresses any needs she may have. But, also explain that your investigation may be limited by her desire to remain anonymous or not involved. Invite her to approach you if she changes her mind. Encourage her to approach you if anything further occurs.
Can you consider credibility?
Much has been reported about the “believability” of Ms. Ford and Judge Kavanaugh during the hearings. In a workplace investigation, can credibility factor in? Absolutely. The EEOC’s guidance on conducting investigations indicates “Credibility assessments can be critical in determining whether the alleged harassment in fact occurred.” The EEOC suggests that an investigator consider the plausibility of the statements, the demeanor of the witness, any underlying motivations, corroboration of the statements, and the past record. Whether or how credibility impacts an outcome will vary based on the specific facts of the investigation. As the EEOC explains: “For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.”
What if a significant amount of time has passed between the alleged event and the reporting?
Ms. Ford alleges that the attack occurred decades ago. What if an employee complains to you about behavior that happened many months or even years ago? Does that make the allegations irrelevant? Does that make them less believable? There is no statute of limitations on accountability for workplace behavior. Employers should treat any allegation of workplace misconduct seriously, no matter when the alleged incident occurred. Even allegations involving past employees should be investigated to determine if current employees may have acted improperly. A delayed allegation can certainly be considered as part of the investigator’s credibility assessment. But, the passing of time should never be cause for an employer to ignore a complaint.
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