Employers may feel they are in a no-win situation when faced with an allegation of discrimination. If the employer terminates the alleged perpetrator, it may face a wrongful termination lawsuit. If the employer determines the alleged perpetrator is innocent, the accuser may claim harassment, discrimination , and/or retaliation.
All employers need to have policies and procedures related to unlawful conduct in place. There needs to be a consistent standard of conduct applied to everyone. And a complaint procedure needs to be written, easily accessible and understood.
A procedure to conduct an internal investigation will provide structure to assure a certain level of consistency and thoroughness. The procedure should identify who will investigate internal complaints, and under what circumstances. In most cases, complaints of harassment or discrimination are investigated by the Human Resource (HR) department.
Many law firms offer How to Conduct An Internal Investigation course for HR professionals. Employers should consider making this investment in their HR departments. Courses generally cover asking effective questions; assessing credibility; sorting evidence; dealing with reluctant witnesses; structuring the investigation process; meeting with the accuser and alleged perpetrator; and reaching a conclusion.
The biggest mistake untrained investigators make is attempting to arrive at beyond a reasonable doubt. Internal investigations do not need to establish this legal standard.
Internal investigations need to be conducted in good faith and reach a reasonable conclusion. According to the California Supreme Court, courts are to focus on whether the process that led to the conclusion was objective and reasonable; not second-guess the conclusion. ( Cotran v. Rollins Hudig Hall International, Inc.)
Successfully preparing to investigate the allegation may be the most important step. Preparation will allow the investigator to maintain complete control of the process and lay the groundwork in a way that maintains the integrity of the investigation. Ideally, the investigator is the only person with the big picture; understanding the issues, listening to witnesses, the alleged perpetrator and accuser.
The investigator should access legal counsel for guidance. This is the only time the investigator may have open discussions about the comments made by others in order to maintain confidentiality and avoid retaliation. Legal counsel should review the investigation report and conclusion before it is submitted.
Employers can move away from this no- win situation by choosing to engage their legal counsel at the onset.
Arriving at a Conclusion