HOW TO CONDUCT AN EFFECTIVE

WORKPLACE INVESTIGATION

DEWEY POTEET, Austin

Akin, Gump, Strauss, Hauer & Feld, L.L.P.

April 2001
 HOW TO CONDUCT AN EFFECTIVE
WORKPLACE INVESTIGATION

TABLE OF CONTENTS

Page

I. OVERVIEW.......................................................................................................................1

A. Investigations Present Special Hazards ......................................................................1

B. Goal of Presentation...............................................................................................1

II. LEGAL DEVELOPMENTS AND CONSIDERATIONS ..............................................1

A. When Investigating Discrimination (or Anything Else),

Avoid Discrimination.............................................................................................1

B. Invasion of Privacy.................................................................................................2

C. False Imprisonment................................................................................................3

D. Protected Concerted Activity ................................................................................3

E. “Weingarten” Rights .............................................................................................3

F. Polygraphs ..............................................................................................................4

G. Outside Investigators and the FCRA ...................................................................4

H. Legal Counsel as Investigators ..............................................................................5

III. POLICIES AND TRAINING............................................................................................6

A. Recent Cases Require New Policies and Training...............................................6

B. Elements of the Harassment Policy ......................................................................8

C. Training .................................................................................................................10

IV. THE EFFECTIVE INVESTIGATION..........................................................................12

i
A. Triggering Events.................................................................................................12

B. Is a Formal Investigation Necessary?.................................................................12

C. Investigation Planning .........................................................................................13

D. Who to Interview..................................................................................................15

E. Interim Preventative Measures ..........................................................................16

F. Investigative Interviews .......................................................................................16

G. Interview Techniques ..........................................................................................19

H. Questions to Ask...................................................................................................21

I. Analysis and Conclusions ....................................................................................25

J. Investigation Reports and Files ..........................................................................28

ii
I. OVERVIEW

A. Investigations Present Special Hazards

Present in virtually every personnel action is the risk of discrimination claims.

Workplace investigations carry these same risks (see Section II A, below) in abundance,
and then some. We must be mindful of possible claims of defamation, invasion of
privacy, false imprisonment, and a host of other tort claims at the disposal of an
increasingly creative plaintiff’s bar. In addition, recent developments in the law increase
the risk that workplace investigations may implicate the Fair Credit Reporting Act or the
National Labor Relations Act. In short, there are few aspects of personnel management
which carry so many risks, or in which the stakes are so high.

B. Goal of Presentation

Our goal is to provide practical guidelines for investigations and an understanding

of the risks and obligations so that you will be able to conduct an effective workplace
investigation. Because complaints of sexual harassment tend to be more common and
complex than most other events triggering a workplace investigation, we will necessarily
tend to focus on this type of investigation. The investigative guidelines and policy
suggestions in this presentation, however, are largely applicable to all types of workplace
investigations.

II. LEGAL DEVELOPMENTS AND CONSIDERATIONS

A. When Investigating Discrimination (or Anything Else), Avoid Discrimination

A recent case out of Illinois, Bernstein v. Oak Park-River Forest High School,
191 F.3d 455 (7th Cir. 1999) illustrates that a workplace investigation, like most
everything else an employer may do, may lead to a claim of discrimination. Plaintiff in
this action was a Jewish teacher who received an anti-Semitic hate letter at her home,
which she believed had been sent by a co-worker. One of her key complaints in the
subsequent litigation was that the employer engaged in religious discrimination by
willfully failing to conduct an adequate investigation. The outcome of the case is
unknown, as the holding of the reported decision was to require the trial court to proceed
with a jury trial on her claim.

Similarly, in EEOC v. E.J. Sacco, Inc., 102 F. Supp.2d 413 (E.D. Mich. 2000), the
principal claim was that the employer, a Burger King franchisee, engaged in racial
discrimination in its conduct of an embezzlement investigation. The employer faired
better in this case; the EEOC was ordered to pay the employer $58,000 plus court costs as
a sanction for pursuing “wholly illusory” race bias claims. The lesson of these cases is
nevertheless clear: investigations often lead to legal claims, including discrimination
claims, and must be conducted carefully, with sensitivity to the gender, race, religion,
etc., of those involved.

1
B. Invasion of Privacy / Defamation

1. The Risk. During investigative interviews, especially those

involving sexual harassment, you may have to explore delicate (or perhaps
indelicate) aspects of personal conduct. Questioning employees concerning
activities that are not sufficiently related to their job performance, conduct at
work, or relations with the accused may constitute an unjustified invasion of
privacy.

2. Sources of Privacy Rights. Public-sector employers must be

concerned with constitutional privacy rights. In the private sector, most states
recognize a common-law right of privacy. Whether constitutional or under the
common law, most claims of invasion of privacy involve a balancing of interests.
In this regard, an employer’s policies and statements, oral or written, may create
an expectation of privacy, the violation of which may be actionable.

3. The Consent Defense. Regardless of the source of privacy rights,

a well-recognized defense to an invasion of privacy claim is consent. Through
appropriate policies and written consents, an employer should be able to
effectively defuse privacy expectations. For example, consider a Computer and
Passwords policy which clearly establishes the employer’s right to inspect the
contents of its computers and electronic files, regardless of any password
protections. Similarly, a well-worded Consent to Search can protect the employer
against a privacy claim, and the refusal to provide such consent may be grounds
for disciplinary action.

4. Tort Liability. The potential for defamation claims arising from

an investigation should be rather obvious (just ask Safeway, Inc.—on January 26,
2001, a Maryland jury awarded $11,000,000 to a manager accused of sexual
harassment based on defamation arising from mishandling the investigation). In
addition, be aware that the disclosure of information obtained in an investigation,
even truthful information, may constitute a form of invasion of privacy. Some
jurisdictions recognize a common-law invasion of privacy for disclosure of
“private facts” -- facts which, although true, a person would expect to be kept
confidential. Some jurisdictions also recognize a “false light” invasion of privacy
tort, based upon the disclosure of true facts which create a false and damaging
impression. See Johnson v. K Mart Corp., 5 IER 1605 (Ill. App. 2000)(reversing
summary judgment for employer on privacy claims arising from intrusive tactics
of private investigators posing as employees in an investigation of employee
workplace vandalism, drug use and theft).

5. Prevention. Invasion of privacy or defamation claims can come

from either the accuser or the accused. Your best protections against such claims
are to (1) develop policies and consent forms to defuse privacy expectations, (2)
initiate investigations only on the basis of documented factual allegations which

2
 objectively justify investigation, (3) narrowly confine the scope of any
investigation to what is reasonable and necessary to protect the employer’s
legitimate interests, and (4) keep the information you gather confidential, sharing
it only with those with a compelling need-to-know.

C. False Imprisonment

The tort of false imprisonment is the willful detention of a person without consent
or legal justification. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex.
1995). In a workplace investigation, the danger of a false imprisonment claim is greatest
when interviewing the accused. An employer has the right, however, to question
employees regarding conduct connected with work, and to require cooperation as a
condition of employment. In doing so, the employer may not detain an employee against
his or her will, either physically or through threats. Such unlawful detention can be
accomplished by violence, threats, or any means that restrain a person from moving from
one place to another. If the detention is by threat, the plaintiff must show that the threat
caused just fear of injury to his or her person, reputation or property.

D. Protected Concerted Activity

Two employees come into your office together to complain of harassment. For a
variety of good reasons, they prefer to interview them separately. Must you honor the
request for a meeting with both employees present? Not necessarily. Can you discharge
or discipline them for asking to remain together during the meeting? Absolutely not.
Section 7 of the National Labor Relations Act (“NLRA”) protects the right of all
employees, not just those in a unionized workplace, “to engage in . . . concerted activities
for the purpose of . . . mutual aid or protection . . . .”

E. “Weingarten” Rights

Another aspect of employee rights under Section 7 of the NLRA was recognized
in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), in which the U.S. Supreme Court
ruled that, in a union setting, the presence of a co-worker at an investigatory interview is
protected by the NLRA. Through this ruling, an employee may demand that a co-worker
accompany them to an investigative meeting they reasonably believe will result in
disciplinary action. Failure to honor this right constitutes interfering with, restraining or
coercing employees in the exercise of their Section 7 rights.

On July 10, 2000, the NLRB ruled that Weingarten rights also apply to non-union
employees. Epilepsy Foundation of N.E. Ohio, 331 NLRB 92, 164 LRRM 1233 (2000).
In this sharply-divided decision, the Board again flip-flopped on this controversial issue,
deciding that the rationale of Weingarten was not dependent upon whether or not the
employees were represented by a union. The ruling raises a host of difficult issues, and
appears to create conflicts with employer obligations under Ellerth and Faragher.

3
 There may be exceptional circumstances in which an employee’s request for the
presence of a coworker in an investigatory meeting may be lawfully denied, but the law
in this area is unsettled. As a general rule, however, an employer is now legally required
to tolerate the presence of a co-worker in an investigatory interview, if demanded by the
employee. The employer has no obligation to publicize this right, and need not allow the
co-worker to participate in the investigative interview.

Do not be surprised if this decision is reversed as the composition of the Board

changes, but unless and until the holding of Epilepsy Foundation is reversed, be aware of
this new pitfall in the investigative process. For additional guidance, a paper on the
Epilepsy Foundation ruling, written by Jonathan Sulds and Roxanne Sokolove of the
Firm’s New York and Washington, D.C. offices, is provided as an Appendix.

F. Polygraphs

1. All to often the resolution of a complaint turns upon assessing the

credibility of two employees engaged in a “swearing match.” A device exists which can
assist in telling whether one or both are lying. It is called a polygraph. Don’t use it.

2. The federal Employee Polygraph Protection Act 29 U.S.C. § 2001 et. seq.,
essentially bans the use of polygraphs in most private employment settings. An
employee cannot waive his or her right under the Act except as part of a written
settlement of a pending court action.

3. Limited exceptions exist for the use of polygraphs in workplace

investigations. Even when an exception to the prohibition on polygraphs is available,
however, employers are well advised to ignore it. Use of a polygraph, or even asking an
employee to take a polygraph, will effectively abrogate the at-will doctrine, requiring the
employer to have independent evidence of misconduct, apart from the polygraph result
and over and above what would ordinarily be required for disciplinary action. Simply
put, employers are better off ignoring the existence of the polygraph.

G. Outside Investigators and the FCRA

If the issues being investigated are particularly complex, or the resources within
your organization are not appropriate for the investigation, you may want to consider
using lawyers, private investigators or independent HR consultants to conduct all or a
portion of the investigation. The use of an outside investigator has perhaps been most
common, and most appropriate, where the target of the investigation is at or near the top
of the employer’s organization. Be careful -- the use of an outside investigator may
implicate obligations under the federal Fair Credit Reporting Act (“FCRA”). Unless
someone’s credit history is relevant to the investigation, what does the FCRA have to do
with an investigation of workplace misconduct? Plenty, if the investigation is done by
someone other than an employee or an exclusive agent of the employer.

4
 • The FCRA imposes obligations on employers who used third-party service
providers who for a fee assemble or evaluate information which is used for
employment purposes. The most common application of the FCRA in the
employment context arises from an employer’s use of a third-party service
provider to conduct or assist in a background investigation of a candidate for
employment.

• Recent amendments to the FCRA require that the target of an investigation

subject to the FCRA must be provided a written notice of the employer’s
intent to obtain a “consumer report” or “investigative consumer report.”
Additionally, the employer desiring to utilize the services of an outside
investigator, in those situations governed by the FCRA, must obtain written
authorization from the subject of the investigation, must provide certain
notices regarding FCRA rights, and must provide a pre-adverse action notice,
a post-adverse action notice, and a copy of the report obtained under certain
circumstances.

• In April of 1999, the Federal Trade Commission issued a letter opinion which
indicates that the use of a paid outside investigator in a sexual harassment
investigation implicates the FCRA, and requires the employer to discharge all
FCRA obligations. In effect, this means that the employer must obtain
permission from the target of the investigation in order to utilize an outside
investigator, and must discharge all of their FCRA obligations, including
provision of the report of the investigator if it is to be used, in whole or in
part, as the basis for an employment action.

• The FTC’s letter opinion has raised a considerable protest, and some FTC
staff members have unofficially indicated that the agency will not take action
against employers that fail to follow the law’s procedural requirements. Keep
in mind, however, that the FCRA has private enforcement mechanisms,
including provisions under which the target of an investigation may sue for
damages.

• There have been legislative efforts to undo the FTC’s letter opinion with
respect to workplace investigations of harassment or other misconduct, but
unless and until there is a regulatory or legislative fix, employers need to be
mindful of the FCRA’s implications in the context of workplace
investigations, and work with legal counsel to address the somewhat complex
FCRA obligations in those instances in which there is a desire or need for the
involvement of third-party service providers in any aspect of the investigation.

H. Legal Counsel as Investigators

There is certainly a legitimate and important role for legal counsel in workplace
investigations, especially if the issues involve potential legal liability. The role of legal

5
 counsel, however, will typically be as a behind-the-scene advisor and consultant, not as
an investigator.

• As indicated above, the use of outside legal counsel for the actual assembly of
information relevant to the investigation or for the interview of witnesses may
implicate the FCRA.

• Regardless of whether an attorney is in-house legal counsel or from outside

your organization, an attorney who is directly involved in interviewing
witnesses or gathering evidence may be a fact witness in any subsequent legal
proceedings, and thus may be disqualified from acting as the employer’s
attorney.

• Qualities that make a person a good legal advocate do not necessarily make
the attorney a good witness.

• The use of an attorney in planning an investigation, and in analyzing the

results, may be very beneficial for the protection of sensitive information
under the attorney-client and work-product doctrines. For example,
communications with legal counsel will be privileged as attorney-client
communications, and documents created at the request of legal counsel may
qualify for protection from disclosure under the attorney work-product
doctrine.

• If the attorney is involved in interviewing witnesses or directly gathering

evidence, however, there will likely be a need to disclose the attorney’s notes
or have the attorney testify about his or her role in the investigation. In this
situation, the attorney’s advice to the employer will probably not be
privileged, and opposing counsel may be able to force disclosure of all
communications between the attorney and client regarding the subject of the
investigation.

Bottom line: there are many appropriate roles for legal counsel in a workplace
investigation, and under special circumstances it may be appropriate to use an attorney as
the investigator, but direct participation in gathering evidence should be avoided in most
instances.

III. POLICIES AND TRAINING

A. Recent Cases Require New Policies and Training

Ever since sexual harassment was first recognized as an actionable form of gender
discrimination we have understood the need for a legally-sound sexual harassment policy,
and for supervisor training on how to handle a sexual harassment complaint. Recent case
law developments counsel that these steps are no longer adequate.

6
 1. Ellerth, Faragher, and the New Standards of Liability for
Harassment. In 1998, the U.S. Supreme Court issued two landmark decisions,
Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) (“Ellerth”) and
Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) (“Faragher”), the effect
of which was to make it harder for employers to avoid vicarious liability for
harassment by supervisors. Under these rulings employers continue to be directly
liable for quid pro quo harassment by supervisors, but as to hostile environment
harassment engaged in by supervisors, the Court changed the standard from a
“knew or should have known” standard to one under which the employer will be
vicariously liable unless it can satisfy the elements of a narrow affirmative
defense. This affirmative defense requires the employer to prove two elements:

a. That the employer exercised reasonable care to prevent and

promptly correct any harassment behavior, and

b. The employee unreasonably failed to take advantage of any

preventative or corrective opportunities provided by the employer or to
avoid harm otherwise.

2. The New Standards Are Not Limited to Sexual Harassment.

The more stringent standards of liability set forth in Ellerth and Faragher are not
limited to sexual harassment, and applied equally to claims of harassment on the
basis of race, color, religion, national origin, age, disability or protected activity.
This is implied in the holdings of the Ellerth and Faragher cases, by virtue of
their reliance on prior case law involving harassment on protected bases other
than sex, and is expressly the position of the EEOC in its recent Enforcement
Guidance on Vicarious Employer Liability for Unlawful Harassment by
Supervisors (June 21, 1999). As these EEOC guidelines suggest, employers now
need to expand their anti-harassment policies and complaint procedures to cover
all the forms of unlawful harassment.

3. Expanded Training Programs Are Needed. In order to satisfy

the first prong of the two-part affirmative defense under Ellerth and Faragher,
which requires proof that the employer exercised reasonable due care to prevent
and promptly correct harassing conduct, an employer must do more than just issue
a well-worded harassment policy. As subsequent case law and the referenced
EEOC guidelines indicate, employers need to ensure that their harassment
policies are known and understood by all employees. This means the employer
should provide training to all employees to make sure they understand their rights
and responsibilities.

4. Kolstad and the Good-Faith Efforts Defense. Lending additional

emphasis to the need for broader harassment policies and training is the U.S.
Supreme Court’s decision of June, 1999, in Kolstad v. American Dental
Association, 119 S.Ct. 2118 (1999). Prior to this decision the lower federal court
were not in agreement on the standards for awarding punitive damages in

7
 discrimination cases, with some courts holding that punitive damages required
“egregious” or “outrageous” discrimination, and others requiring a showing that
the employer had an “evil motive.” In Kolstad, the Court ruled that egregious or
outrageous conduct need not be shown, and that the focus should not be on the
nature of the conduct but rather upon the motive of the employer. The Court
recognized, however, that employers who make good-faith efforts and comply
with anti-discrimination laws should not be held liable for punitive damages, even
if the employer’s conduct was discriminatory. The Court therefore held that
employers should not be held vicariously liable for the discriminatory
employment decisions of management employees where those decisions are
contrary to the employer’s “good-faith efforts” to comply with the employment
discrimination laws. The Court left it up to the lower courts to decide what will
suffice as a good faith effort to comply with the anti-discrimination laws.

5. Actions Needed. As a result of Ellerth, Faragher, Kolstad and

subsequent cases interpreting these decisions, in order to reduce the likelihood of
being held liable for discrimination or harassment, employers need to:

• Revise harassment policies to address all forms of harassment, not just

sexual harassment.

• Distribute EEO and harassment policies broadly to all employees,

preferably in more than one form (e.g., posting on the bulletin boards,
inclusion in employee handbooks).

• Redistribute EEO and harassment policies periodically.

• Conduct training for all employees to make sure that they understand
the harassment policies and complaint procedures.

B. Elements of the Harassment Policy

In order to maximize the chances for your organization to prevent and escape
liability for harassment, the anti-harassment policy and complaint procedures should
contain, at a minimum, the following elements:

1. What is Prohibited. A clear explanation of the prohibited

conduct, with both quid pro quo and hostile environment harassment defined in
legally correct terms, but without use of “legalese.”

• Make it clear that no employee, regardless of position, has the

authority to condition employment opportunities on the tolerance of
unwelcome sexual conduct.

• The policy needs to be clear and understandable to everyone in your

organization.

8
 • For some employers, it may be important to provide foreign-language
translations of the harassment policy for those employees who are not
proficient in English.

2. Complaint Procedure. The policy needs to clearly describe a

complaint procedure that provides readily-accessible avenues of raising a
complaint of harassment or discrimination.

• A rigid chain of command complaint procedure should be avoided, as

supervisors within the chain of command are sometimes the target of
harassment complaints.

• Preferably, designate at least two persons in the organization to whom

complaints should be directed, with all designated complaint recipients
being carefully trained in handling harassment investigations. Avoid
designating all managers as complaint recipients, as it is far too easy
for an employee to allege that casual remarks to a supervisor actually
constituted a complaint, but did not result in a prompt and effective
investigation.

3. Assurance of Prompt Action. Include in the policy an assurance

that your organization will take prompt and appropriate corrective or preventive
action in response to complaints of harassment or discrimination. Such
assurances are a departure from the general rule that employers should avoid
making promises to employees, but are nevertheless appropriate because it is just
what the law requires: prompt and effective investigations and corrective actions.

4. Confidentiality. Without promising absolute confidentiality,

include in the policy an assurance that the employer will protect the
confidentiality of harassment complaints to the extent reasonably possible,
disclosing information obtained during an investigation only on a need-to-know
basis.

5. Non-Retaliation. Include in the harassment policy an assurance

that the company will not engage in or tolerate retaliation against any employee
for making a good faith complaint of harassment or providing information
relating to such complaints during an investigation. Again, this is an exception to
the general rule that promises to employees should be avoided, but it is an
exception that should be made because it is what the law requires. The assurance
of non-retaliation is essential to the affirmative defenses and safe harbor against
punitive damages under Ellerth, Faragher and Kolstad.

9
C. Training

No matter how well written your harassment policy is, mere distribution of the
policy will probably be insufficient to meet the standards for the affirmative defenses and
safe harbor from punitive damages recognized under recent case law. Training and
periodic reminders to all employees about your harassment policies will certainly be
helpful. Special training for all supervisors, however, is vital.

Case Illustration:

In Miller v. Woodharbor Molding and Millworks, 81 F.E.P. 1665

(N. D. Iowa, 2000) the employer had an anti-harassment policy of
which the plaintiff was aware, and while she reported harassment
to one of the company’s supervisors, she never brought her
harassment complaint to the attention of the human resources
department. The employer was nevertheless unable to avail itself
of the affirmative defenses for hostile environment harassment by
a supervisor, largely because its supervisors had received no
training in handling harassment complaints, and some apparently
were even unaware of the policy.

1. Train All Employees Regarding Complaint Procedures. As

indicated above, the employer’s anti-harassment policy should not indicate that
complaints of harassment can be made to any supervisor, but rather should require
that harassment complaints be taken to certain designated individuals (e.g., the
human resources manager or the general manager). This limited designation of
managers to whom harassment complaints should be brought will help the
employer establish the second prong of its affirmative defense under Faragher
and Ellerth in those situations in which the complaining employee has reported
harassment to one or more supervisors yet failed to bring the alleged harassment
to the attention of the designated recipients of complaints.

Case Illustration:

Medray v. Publix Supermarkets, 82 FEP 1071 (11th Cir. 2000). In

this instance, the plaintiffs, two female employees, told two
different assistant managers about alleged harassment by their
boss, the store manager. The employer’s harassment policy,
however, required that harassment reports be made to the Store
Manager, District Manager or Division Personnel Managers. Once
the alleged harassment was belatedly brought to the attention of the
District Manager by one of the assistant managers, the employer
took prompt and effective corrective action, and on this basis
avoided liability for supervisory harassment despite the fact that

10
 several weeks passed between the employee’s initial reports to the
assistant managers and the initiation of an investigation.

2. But Train Supervisors on Their Complaint Responsibilities.

Notwithstanding the limited designation of complaint recipients in your
harassment policy, all supervisors need special training on what is expected of
them with respect to harassment and discriminatory conduct in the workplace.
Despite the favorable case law and a reasonable but limited designation in your
policies of the persons to whom harassment complaints can be made, there is a
strong likelihood that employees, EEOC investigators and juries will hold your
organization responsible for any knowledge of harassment or discriminating
conduct coming to the attention of any supervisor.

3. The Supervisor’s Duty. As stated in the EEOC Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, “an employer’s duty to exercise due care includes instructing all of
its supervisors and managers to address or report to appropriate officials
complaints of harassment regardless of whether they are officially designated to
take complaints, and regardless of whether a complaint was framed in a way that
conforms to the organization’s particular complaint procedures. For example, if
an employee files an EEOC charge alleging unlawful harassment, the employer
should launch an internal investigation even if the employee did not complain to
management through its internal complaint process.”

4. Take Action Even in the Absence of a Complaint. The EEOC

guidelines and recent case law also indicate that employers have responsibility to
correct harassment regardless of whether employee advances an internal
complaint in those situations where the conduct is clearly unwelcome.

5. Hold Supervisors Accountable. Based upon these

considerations, employers should train all supervisors and managers regarding
their responsibilities as to harassment and discrimination, whether observed or
reported, and should hold supervisors accountable for their performance in this
important area of their responsibilities. Such training of supervisors should
include the following:

• An explanation of the types of conduct that violate the employer’s

anti-harassment policy.

• The importance of the policy.

• Supervisory responsibilities to not only avoid participating in

harassment, but also to not stand idly by when inappropriate conduct
takes place in their presence or comes to their attention.

11
 • A clear instruction that all complaints of harassment coming to their
attention from any source must be immediately brought to the attention
of those in the organization responsible for handling harassment
complaints. All supervisors need to understand that handling a
harassment complaint or situation at a departmental level is
unacceptable, and may subject the supervisor to disciplinary action or
a negative evaluation of their performance in this area.

IV. THE EFFECTIVE INVESTIGATION

A. Triggering Events

Initiation of an investigation should not, must not, be limited to those situations in

which an employee has personally raised a complaint to the employer’s designated
complaint recipients. All supervisors should be regarded as the eyes and ears of
management, and we should assume that the employer will be held responsible for any
harassment or discrimination which is known to a supervisor, or which should have
become known through reasonable diligence. Thus, prompt investigation and appropriate
corrective or prophylactic action may be necessary when any of the following occur:

• An employee complains to any supervisor about alleged harassment or

discrimination personally experienced by the employee.

• When any person, employee or non-employee, brings allegations to the

attention of a supervisor that an employee has allegedly been subjected to
harassment or discriminatory conduct.

• When a supervisor personally observes conduct which might reasonably be

construed as discrimination or harassment (or even conduct short of
harassment which violates an employment policy).

• Upon receipt of an EEOC charge, even if no complaint was made prior to the
charge.

B. Is a Formal Investigation Necessary?

As to any complaint, a threshold determination must be made as to whether a

formal investigation is needed. Some problems can be resolved quickly and informally
without an investigation, and it is usually in the best interest of both employer and
employee to attempt resolution as quickly and effectively as possible. The factors to be
considered should include the following:

• Whether the issues are simple or complex.

• Whether the complaint involves just one employee, or many.

12
 • Whether the complaint stems from a single incident, or a pattern of conduct.

• Whether the alleged behavior is minor, moderate or major in significance.

• Whether all the facts necessary for resolution are known (e.g., where the sole
basis of the complaint is a single offensive letter, voice-mail, e-mail or other
document, the source and authenticity of which is not in question, or where
offensive conduct between co-workers has been directly observed).

• Whether special expertise may be necessary in order to reach a conclusion

(e.g., medical or financial information).

C. Investigation Planning

A poorly planned or ineffective investigation may be worse than no investigation

at all. By way of example, in Wal-Mart Stores v. Itz, 2000 W.L. 349787 (Tex. App. –
Austin 2000), a manager interviewed some of the relevant witnesses to a complaint of
harassment (proving that the employer knew of the allegations), and was provided gifts
the alleged harasser had given to the complaining party. Other employees corroborated
her allegations regarding the supervisor’s improper advances, touching and gifts, and a
non-employee customer independently complained to the manager about harassment she
had witnessed. The manager, however, neither disciplined or cautioned the supervisor,
and failed to inform the plaintiff of the results of the investigation. The manager
supposedly offered to transfer the complaining employee away from the supervisor, but
this offer was conveyed to the plaintiff’s boyfriend, not directly to the employee.
Subsequently, the employer failed to respond to a written request for a transfer made by
the plaintiff’s attorney. It should come as no surprise that the employer was found liable
for harassment and constructive discharge.

Similarly, in Henderson v. Simmons Food, 217 F.3d 612, 8th Cir., 2000, the
employer did not initiate an investigation promptly despite repeated reports of offensive
conduct to supervisors, and when it did eventually initiate an investigation the employee
was told that she might be fired if her allegations were unfounded. During the
investigation a supervisor interviewed potential witnesses who could not speak English,
without an interpreter. The company did warn the two alleged harassers that sexual
harassment was grounds for termination, but it refused to transfer either of the co-workers
accused of harassment despite the fact that it would have been easy to do so. An
Arkansas jury awarded the plaintiff $175,000, plus attorneys fees. The appellate court
upheld the award, noting that the investigation was “hardly a textbook model of
competent and efficient responsiveness.”

1. Plan, but Be Flexible. The employer needs to be prepared to

conduct a comprehensive, objective, fair and professional investigation. The
investigation planning needs to be flexible. For example, the scope of the
investigation may need to be expanded if the evidence leads to allegations that
people other than the accused harasser are engaging in similar conduct, or that

13
other employees have been subjected to harassment by the same individual.
Similarly, law enforcement may need to be brought in if evidence of criminal
conduct comes to light (but neither an investigation by law enforcement nor the
EEOC should be allowed to substitute for the employer’s investigation).

2. Select the Investigative Team. Determining who should conduct

the investigation is a critical part of the planning process. It is preferable to have
two competent investigators conducting any investigation of substance. One
might take the lead during investigative interviews, with the other taking careful
notes. It is also important for the investigators to be unbiased and objective, and
that the complaining party be comfortable with the investigators. Obviously, a
female complaining of sexual harassment may be more comfortable talking with a
female investigator, but regardless of the race or gender of the investigator, it is
important to obtain confirmation from the complaining party that he or she is
comfortable with the assigned investigators.

3. Assemble Relevant Documents. All relevant documents should

be identified, assembled and reviewed promptly. Throughout the investigation,
each person involved in the investigation should be asked whether they have any
documentation that might be helpful in addressing the issues. Relevant
documents will typically include the personnel file of the individual accused, but
may also include correspondence, e-mails, medical records, or even scribbled
notes.

4. The Investigation File. The investigators should prepare an

investigative file, which should typically include copies of all relevant company
policies; relevant documents from the personnel files of the complaining
employee, the accused, and co-workers or other employees where appropriate;
records of prior complaints made by the complaining employee; any prior
complaints against the accused; a written plan identifying who will be interviewed
and the sequence of those interviews; and a chronology of relevant events. The
written plan and a running chronology should be updated as necessary as the
investigation progresses. During the investigation materials to be added to the
investigative file will include notes of interviews with employees; signed
statements from the complaining employee, the alleged offender, and any
witnesses; any memoranda regarding the investigation prepared by the
investigators; and the investigators’ final report detailing the conclusions and
recommendations.

5. Identify Any Other Resources Needed. At the outset of the

investigation, clearly identify the issue or issues the employee is raising, identify
the company’s obligations (legal and organizational) with respect to the issue(s)
presented, and determine what other resources may need to be brought to bear on
the issue(s). Additional resources you may want to consider include:

14
 • Public relations, if there is a potential for adverse publicity about the
situation.

• Law enforcement, if the allegations involve criminal conduct.

• Private investigators, if surveillance or investigations outside the

workplace are needed, or if there is no one within the employer’s
organization well-suited to conduct the investigation.

• Legal help, for assistance in determining the employer’s obligations,

assistance in planning the investigation, protecting sensitive
information, or the like.

D. Who To Interview

In the typical harassment or discrimination investigation (if there is such a thing

as a typical investigation), the initial interview of the complaining party will often occur
before any planning has taken place, and the employer will have little control over where
the interview occurs, or which member of management conducts the interview (other
than through the employer’s designations of complaint recipients and its policies).
Regardless of who first learns of the problem, there may be a need to conduct one or
more follow-up interviews with the complaining party. Other persons to be interviewed
will typically include:

• The alleged offender.

• Anyone who directly observed a relevant incident.

• Other witnesses with relevant information, whether identified by the

complaining employee or the accused.

• Authors of relevant documents.

• The supervisor of the complaining employee and/or the alleged offender.

• People whom the complaining employee has asked you to interview.

• People whom the alleged offender has asked you to interview.

Avoid going on fishing expeditions, and limit the number of interviews to only
those reasonably determined to have relevant information. Be prepared to conduct
follow-up interviews as necessary.

15
E. Interim Preventative Measures

Once the basic allegations and issues have been identified, determine whether
there is a need for preliminary action pending completion of the investigation. If
necessary to protect the health and safety of any employee, or to protect the integrity of
the company’s policies or investigation, consider taking preliminary action such as:

• Suspension of the alleged offender, with or without pay.

• Temporary transfer of an employee (but be reluctant to suggest that the

complaining employee be transferred, even temporarily, unless the
complainant requests this, or agrees that a temporary transfer may be
necessary). If there are serious allegations of stalking, violence or threats of
violence, or indications that the alleged offender may be mentally unstable, it
may be appropriate to consider offering the complaining employee a brief
temporary assignment in another city, or time off with pay. Typically,
however, if any person is to be removed from the workplace pending
completion of the investigation it should be the person accused of serious
misconduct.

F. Investigative Interviews

There is no substitute for thorough preparation. Other than through training and
policy development, you may have little or no opportunity to prepare for the initial
interview with a complainant who comes to you about a problem. For all other aspects of
the investigation, however, it is best to carefully select where the interview will take
place, who will conduct the interview, what questions will be asked and what statements
will be made at the start and close of the interview, and how you will document both the
information obtained from and the instruction and assurances provided to the interviewee.

1. The Setting is Important. In order to protect privacy and

confidentiality, and to avoid embarrassing any party to the investigation, you may
want to meet after hours or away from the workplace. You are also more likely to
get candid disclosures if the setting is informal and comfortable. Avoid sitting
behind an imposing desk, but do not sit so close that you might be invading the
comfort zone of the interviewee.

2. Prepare the Questions in Advance. Again, there is no substitute

for preparation. It is too easy to overlook an important issue if interviews are
conducted without careful focus on the issues to be addressed.

3. Opening Statement. It is likely that many or most of the

employees you interview in an investigation will be quite nervous, and
understandably apprehensive about what is taking place. It is preferable to
provide a brief explanation at the start of the interview regarding what is going on
and what is expected of the interviewee. The content of your opening statement

16
should necessarily depend upon the role of the person you are interviewing,
whether it be the complainant, the accused, or witnesses, but in general should
address the following:

• That you appreciate their time and cooperation.

• A brief explanation of the nature of the matter you are investigating

(e.g., a claim of race discrimination, an alleged theft, a verbal or
physical altercation, etc.).

• Why the interviewee has been included in the investigation (e.g., that
they have been identified as someone with a complaint, have been
accused of harassment or other misconduct, or have been identified as
someone who might have knowledge relevant to the allegations under
investigation).

• That the matter under investigation is serious, and that the company
has a commitment or obligation to investigate the claim.

• That the information provided by the interviewee will be kept as

confidential as possible, and disclosed on a need-to-know basis.

• That the company has a firm policy prohibiting retaliation against any
participant in the investigation, and that any perceived harassment will
be reported to you (or some specific individual) immediately.

• That no conclusions will be made until all the facts have been gathered
and analyzed.

• That each employee is expected to cooperate fully in the investigation

of any complaint of inappropriate behavior, and that cooperation
includes maintaining the confidentiality of any information provided,
refraining from discussing the complaint or the investigation with
other employees or persons outside your organization.

• That any attempt to influence the outcome of the investigation by

discussing it with others violates company policy and can be the basis
for disciplinary action.

• That retaliation against a participant in the investigation is prohibited,

and should be reported immediately to you or some specifically
designated person.

4. No Time Limits. The employee being interviewed should never

be given the impression that there is a time limit on the meeting. Employees with
a significant stake in the outcome of the investigation, such as the complainant or

17
the accused, will feel that the employer is not sufficiently concerned about their
rights, and may use any haste in the investigative interview to portray the
employer as callous or malicious.

5. Keep the Interview Serious and Businesslike. A good

interviewer will remain calm and in control throughout the interview. In a
harassment investigation, there is no place for joking, sarcasm, or threats, and the
interviewer should avoid expressing any opinions about the information obtained.
The goal is to obtain information, not to provide editorial comment.

6. Stay Focused on the Issues. Be prepared to explore issues or

complaints which come to light in the investigation, but guard against allowing
the investigative interview to turn into a general discussion of grievances. The
issues you will need to explore may also include the conduct of the complainant
(in order to determine whether allegedly offensive conduct was welcomed), but
your primary focus should be on whether the allegations against the accused
individual are true. Undue preoccupation with the reputation or conduct of the
complainant can be dangerous.

7. Take Careful Notes. Take the time to write your notes legibly,
and go over your notes before you complete the interview to make sure that you
have accurately recorded all relevant information obtained, and have covered all
issues. There are a variety of ways to document the information provided by the
interviewee, including having the interviewee provide you with a written
statement covering the issues discussed, but there is no substitute for good note
taking. Your notes should be dated, and should clearly indicate the identity of the
interviewer(s) and interviewee.

8. Documentation Methods. There is probably no single best

method for documenting the interviews, but the goal should be to have the
complainant, the accused, and each key witness confirm, by their dated signatures
(1) the accuracy of the information they provide, and (2) the receipt of any
instructions given to them. Some complainants or witnesses may be reluctant to
provide a written statement or sign anything you might prepare, in which case
documentation of the information obtained and instructions given will need to be
in the form of statements signed by the interviewers. Regardless of method used,
there are two key components of the interview documentation:

• Employee Statement: A record of the issues raised, the employee’s

version of what happened, who was involved, witnesses, dates, the
employee’s suggestions as to the conduct of the investigation and the
resolution of the issues, etc. This can be in the form of (1) a statement
prepared by the witness at your request, (2) your own notes (perhaps typed
shortly after the interview), or (3) as a component of the
Confirmation/Instructions memo (see below), but in any event should be

18
 dated and signed by the interviewee (with adequate opportunity to make
corrections or additions).

• Confirmations/Instructions: A record, to be signed by the employee, of

the confirmations obtained from the employee, and the instructions given.
Components of the employer-generated confirmation memo should
typically include some or all of the following acknowledgements, as
appropriate to the type of investigation:

• The identity of the investigators, and confirmation that the interviewee

is comfortable with their impartiality.

• Confirmation of the issues.

• Confirmation by the employee that the information provided is true,

correct and complete.

• A brief summary of the investigative plan, and that no decisions will

be made until the investigation is completed.

• An outline of the employer’s expectations of the employee as to

confidentiality, cooperation, the prompt reporting of any developments
or further problems.

• A review of the employer’s prohibition of retaliation.

G. Interview Techniques

1. No Substitute for Preparation. Draft in advance an outline of the

remarks you will make in an opening statement, a preliminary list of questions
you want to ask, and a checklist of instructions appropriate to the person being
interviewed.

2. Use Recognized Counseling Techniques. Let the employee talk

freely, including “venting” about feelings. Use “clarification”: restate the
problem or information to make sure you and the interviewee are in agreement
about what was discussed. “Partialize”: If needed, break down a series of
problems or statements into manageable parts. A good interviewer will also
control the natural tendency to talk too much themselves, and will avoid
telegraphing the “right” answer to a question. Do no interrupt the employee,
cutting off information or supplying a conclusion to a sentence. Use silence to
advantage; remaining silent after the employee finishes a statement may cause the
employee to volunteer more information because he or she feels compelled to fill
in the gap caused by silence.

19
 3. Read Non-Verbal Signals. Observe “body language”
communicated through posture, arm position, eye contact or avoidance, and the
like. Look for signs of nervousness such as sweating or restlessness. Are
questions answered directly or evasively? A firm denial may be more credible
than a “why would I do that?” response.

4. Type and Order of Questions

• Plan the order of your questions, stick to your plan, and be

comprehensive. At the same time, be flexible, following up on any
new issues raised.

• Ask open-ended questions, avoiding putting words into the person’s

mouth. Start with broad questions, and move to more narrow issues.

• Save unfriendly or embarrassing questions until the end of the

interview. Beginning with the “tough” questions may cause the
interviewee to become defensive.

• Do ask the tough questions. Even if the situation is uncomfortable for

you or the interviewee, make sure you are satisfied that you are getting
all the information the witness has.

• Ask questions which are designed to give you relevant facts, avoiding
questions which will elicit opinions, speculations or conclusions.

• Ask who, what, when, where, how and why type questions.

• Avoid offering opinions or conclusions yourself.

• Don’t stop with the pre-planned questions; the employee’s responses

will typically lead to additional questions and issues not on your list.

• Ask the follow-up questions: “anything else?”

• Before concluding the interview, be sure you have everything the

witness knows about the issues. Go over your notes, make sure they
are comprehensive, and follow up on any items needing clarification.
Ask the employee if there are any questions you have not asked which
he or she feels you should have asked.

• Conclude the interview with your instructions regarding

confidentiality, cooperation, non-retaliation, the reporting of further
problems, and with a note of thanks for the employee’s time and
cooperation.

20
H. Questions to Ask

1. Complainant.

Keeping in mind that you may need to conduct follow-up interviews, the
primary focus of the initial interview should be to get the facts: who, what,
where, when, why and how.

• What is the problem? What happened?

• Who was involved?

• When and where did the incident take place?

• Where there any witnesses? If so, who?

• Was the incident isolated, or part of a pattern?

• Has the employee talked to anyone else about the situation? If so,
who?

• Has the employee spoken to anyone in management about the issue?

If so, who, and what was their reaction?

• Is the employee aware of any documents or things relevant to the

situation?

• Has the employee kept any notes, diaries or records relevant to the
complaint?

• Is the interviewee aware of any other employees with the same or a

similar concern?

• Did the employee participate, and to what degree? How?

• What was the employee’s relationship with the alleged offender?

• Has the employee had any other problems, on or off the job, with the
accused individual(s)?

• What does the employee think the accused might say about the
allegations?

• How has the incident affected the employee (and what has the
employee done about it)?

21
• Does the employee believe that he or she can work with or around the
alleged offender? If so, is there anything the employer can do to assist
in order to restore or maintain a positive working relationship? If not,
why does the employee believe he or she could not work with the
alleged defender?

• Does the employee have any suggestions or preferred resolutions?

• Does the employee have any additional facts or information that would
be helpful in an investigation, if one is warranted?

Before concluding the interview, you should:

• Thank the person for raising the complaint.

• Summarize the non-retaliation policy, and instruct the complainant to

report any further incidents or any perceived retaliation to you
immediately. Make sure the employee knows how to contact you.

• Request a written summary of the complaint, if that is how you have

decided to memorialize the employee’s complaint. Consider,
however, promptly providing the employee your own comprehensive
summary of the information provided, together with written
confirmation of your instructions.

• Ask the employee to come to you if they think of any additional

information.

• Tell the employee that you will limit disclosure of information to those
people having a need-to-know. Instruct the employee that he or she
should also maintain confidentiality, and that the employee should
consult you before discussing the complaint with anyone else.

• Provide the employee an estimate of how long you expect the

investigation to take, and indicate that no decisions will be made until
the investigation is complete.

• Tell the employee that you may need to meet again to follow-up, and
that you will meet with him or her again once the investigation is
complete to summarize the action taken.

• Thank the employee again for raising the complaint, and express your
commitment to resolving the matter promptly.

22
 2. The Accused.

Generally, you should inform the accused individual’s immediate

supervisor of the complaint and your intention to interview the individual,
requesting that the supervisor be vigilant for further problems, retaliation, or other
reactions which may affect the situation.

The alleged offender will often be nervous or apprehensive. At the outset,

the investigator should explain his or her own impartiality, that the intent is to
conduct a thorough and fair investigation, and to allow the alleged offender a full
opportunity to present his or her side. Need-to-know confidentiality should be
explained, and the alleged offender should be informed that, regardless of the
merits of the complaint, the employer will not tolerate retaliation against the
complainant or any witness.

Explain that no conclusions will be drawn until the investigation is

completed, and review the details of the incidents. Afford the accused an
opportunity to explain the facts and identify any witnesses. In addition to the
who, what, where, when, how and why questions, the following additional
questions might be helpful, depending on the situation:

• What positions has the alleged offender held? When?

• Name the employees whom the alleged offender has supervised or

worked with?

• Did anyone witness the incidents in question?

• How did the complaining employee respond to the alleged conduct?

Did the complaining employee communicate that the alleged conduct
was unwelcome? Did the complaining employee engage in conduct of
a similar nature toward the alleged offender?

• How does the alleged offender view the conduct of the complaining
employee?

• Has the alleged offender used profanity (or, as applicable, racial or

ethnic remarks) in conversations with other employees? What was
said? To whom? When?

• Has any manager or other employee ever requested that the alleged
offender refrain from using such language? Who? When?

• Has the alleged offender gone out with the employee socially, or asked
employees to go out with him or her socially? Who? When? What
happened?

23
 • How did the complainant react to the conduct of the accused?

• Has the employee commented on the physical attributes of the

complaining employee or others? What was said and when? Who was
present?

• Has the alleged offender ever asked the complaining employee or

others about his or her sexual relationships, or discussed sexual
relationships with other employees?

• Has the alleged offender ever touched an employee in such a way that
the employee found it offensive or inappropriate?

• Has the alleged offender ever implied or threatened a subordinate’s job

if he or she was not receptive to his or her advances?

• Have any of the alleged offender’s supervisors ever spoken to him or

her about the issues?

• Does the alleged offender have any documents concerning the

complaining employee or the incidents which are the subject of the
complaint?

• Does the alleged offender have any witnesses he or she wants you to
interview as part of the investigation?

• If the alleged offender claims the allegations are false, ask of any
reasons why the complainant would make up or embellish the
allegations.

• Has any spoken to the alleged offender about this investigation?

Who? When? What was said?

• Does the accused have any other information or documents that might
be helpful in the investigation?

At the conclusion of the interview, thank the employee for his or her time
and cooperation, emphasize that no conclusions will be drawn until the
investigation is complete, and cover your expectations as to non-retaliation,
reporting of additional problems and confidentiality.

3. Witnesses.

The involvement of third-party witnesses should typically be limited to

only those individuals identified by the complainant or the accused, or otherwise

24
 known or believed to have knowledge of relevant events. Avoid fishing
expeditions. Inform each witness of the general nature of the issues you are
investigating, but emphasize that no conclusions will be drawn until the
investigation is complete. Instruct the witness regarding your expectations as to
non-retaliation, the reporting of retaliation or additional problems, and your
expectations regarding confidentiality.

The focus of the witness interview should be to determine whether he or

she has observed the incidents in question, but do not limit your inquiry to only
those incidents described by the complaining employee or the alleged offender.
Explore whether the witness has been subjected to similar conduct, and if so,
follow up on the allegations. Witness interviews should be focused on getting the
facts: who, what, where, when, and why. Do not fail, however, to find out how
the witness has been affected by observation of the incidents, and what he or she
has done about it.

At the conclusion of the witness interview, as with the complainant, thank

the witness for their time and cooperation, and cover your expectations as to
confidentiality, non-retaliation and reporting of any problems promptly.
Document the witness interview, covering both the employee statement and your
commitments and instructions.

I. Analysis and Conclusions

1. Quality Control. Once you have concluded the investigation,

review your investigation plan and all information gathered for completeness and
proper documentation. If possible, get a second opinion from someone you trust
who is not involved in the investigation regarding the scope and completeness of
the investigation, as well as any conclusions to be reached from the information
gathered.

2. Assess Credibility. It is important that you reach conclusions,

even when doing so is difficult, and this will often require credibility assessments.
Factors to be considered in assessing credibility might include the following:

• What was the “body language” of the interviewee? Obvious

nervousness? Sweating? Tone of voice?

• How did the interviewee react to the allegations? Argumentative?

Defensive? Hostile?

• Does the person inspire confidence in the listener? Is his or her overall
impression credible?

• Logic / consistency of story. Did the person’s chronology of any

events he or she related differ greatly from the chronology of other

25
 interviewees? Does this person’s version make sense? Plausible or
far-fetched?

• Was the person forthcoming, or did you have to “pull information”

from him or her?

• Corroborating evidence. Were there any admissions during the

interview? For example, “The only reason why I did it was to help
her.” Did the person’s version of the facts differ from anyone else’s?
Do witnesses corroborate the person’s version?

• Circumstantial evidence. Are there things that the accused said or did
in other situations that make it more likely than not that the facts in
dispute actually happened?

Reach a Conclusion. Very few issues are black and white, and often you
will be dealing with various shades of gray. It is nevertheless important to reach a
conclusion. Examine the objective facts, consider motivations, and determine
what standards of proof should apply to your investigation?

Report Back to Complainant and Accused. At the conclusion of the

investigation, it is generally appropriate to follow up with both the complainant
and the accused. Perceptions are important, and no matter how appropriately you
respond or what preventative action you take, the complainant may feel that
nothing has been done if the general result of the investigation is not promptly
communicated. It is typically not appropriate, in most instances, to inform
employees other than the complainant and accused of the results of an
investigation. Those witnesses who were interviewed may ask about the final
results, and it is generally best to explain that the information is confidential, that
their assistance was appreciated, but that the conclusions drawn and actions taken
are confidential.

Document Your Follow-up with the Complainant. Consider a written

communication to the employee who raised the complaint. Especially in more
significant and serious cases. Such a memo needs to be tailored to the facts of a
particular situation, but should generally be brief, and need not discuss specific
findings. Rather, the complaining employee should be informed that the
investigation has been completed, that each issue has been reviewed and
considered carefully, and that appropriate action is being taken. Depending on the
circumstances, it may or may not be appropriate to inform the employee of the
specific actions taken. Such a memo should encourage the employee to supply
management with any documentation or additional information that he or she
might obtain in the future that could impact the decision made in the
investigation.

26
 Consider Policy, Practice and Circumstances. Once conclusions are
drawn regarding what happened, the employer must formulate a course of action.
Factors to be considered will typically include the following:

• Were any policies or instructions violated?

• What has been done in the past in response to similar violations or

incidents?

• Does any law require you to take a certain action?

• What is the tenure and history of the employee who violated your
policy?

• Are there mitigating or aggravating circumstances?

3. Take Action. Even in those situations in which firm conclusions

cannot be drawn, there are typically valuable lessons to be learned and
preventative actions which can be taken. The range of responses to consider
might include the following:

• Admonitions to carefully avoid offending conduct in the future, even if

no firm conclusions can be reached as to what happened.

• Training or educational programs, individually, as a group, or

company-wide

• Verbal counseling or warnings

• Suspension

• A corrective action plan or probationary period

• Deferral of a performance review date

• Demotion

• Transfer of the offending employee

• Reduction in salary

• Salary freeze

• Termination

27
 • Follow-up on additional complaints raised during the investigation

J. Investigation Reports and Files

Depending upon the seriousness of the issues involved, consider preparation of a

final investigative report summarizing the incident or issues under investigation, the
application of company guidelines or policies, key factual and credibility findings, and
the action taken. The following information should typically be included:

• The date of the complaint or incident leading to the investigation.

• The identity, position and department of the employee initiating the

complaint, or the information that prompted the investigation.

• The identity, title and department of the target of the investigation.

• The names and titles of those who conducted the investigation.

• A summary of the complaint raised or information received leading to the

complaint.

• When the investigation began, and when it was completed.

• Confirmation that both the complainant and the accused agreed that the
person(s) conducting the investigation could, in their opinion, do so fairly and
objectively.

• The identities of all persons interviewed, the dates of each interview, and a
brief summary of the information obtained from each person.

• Final decisions made and dates of implementation.

• A copy of any employer policies or guidelines relevant to the situation.

• Summary of key facts relied upon in reaching the final decision, with
reference to the source of each key fact.

• Brief discussion of any credibility assessments reached, including the

objective observations from which such credibility assessments were made.

• A brief discussion of how the employer’s guidelines or policies apply to the

situation.

• The specific conclusion(s) reached on each key issue.

28
• Identification of any issues that could not be resolved in the investigation, and
why.

• What action is to be taken, and when.

• Remember that each and every document gathered or prepared during the
investigation may someday become an exhibit before a hostile jury. Keep it
brief, factual and objective to the maximum extent possible. The goal should
be that a hostile jury or EEOC investigator would conclude that the employer
took the situation seriously, responded appropriately, and had a documented
good faith basis for any actions taken during or on the basis of the
investigation.

29