For many employers, receiving a complaint of sex harassment (or any other form of harassment or discrimination based on a legally protected category) triggers an audible groan and a begrudging acceptance of the requirement to conduct a workplace investigation. And given the ever greater demands on the time of the HR and Legal teams that are usually tasked with conducting the investigation, it is not a surprise that “getting it done” sometimes trumps “getting it right.” However, each workplace investigation truly needs to be conducted with the expectation that the investigation itself potentially will be scrutinized by Plaintiff’s counsel, and a judge, jury, or arbitrator. Additionally, each workplace investigation needs to be designed and implemented with multiple goals in mind: (1) messaging to the employees participating in the investigation the commitment the employer has to maintaining the right kind of workplace; (2) determining the facts and documenting them; (3) communicating the employer’s support for appropriate workplace conduct; (4) deterring employees considering engaging in conduct similar to conduct underlying the complaint; (5) complying with the employer’s legal obligations and reducing the risk of legal exposure; and finally, (6) addressing and resolving the complaint.
In the fast-paced world of most employers, several of these goals get left out of the equation. Moreover, in the well-intended desire to complete the investigation promptly, “shortcuts” are often taken that impair the effectiveness of the investigation and make it vulnerable to attack in litigation. Given that Plaintiff’s counsel has the benefit of hindsight when criticizing or attacking a workplace investigation, it is incumbent upon employers to take extra time and be thoughtful about preparing an investigation and implementing the investigation in a way that will stand up to scrutiny. Critical issues such as: (1) deciding the scope of the investigation, (2) whether investigation should be conducted by an outside investigator, (3 who should be the decision‑maker as to any discipline of the alleged bad actor if the investigation concludes that discipline is warranted, and (4) who should conduct the investigation, are often not given as much consideration as is necessary.
One of the first lines of attack on any investigation is the skill and training of the investigator, so selection of the investigator is critical. Unfortunately for most employers, the instinct is often to give the investigation to the person with the least “on their plate,” which frequently corresponds to the person with the least experience or training conducting investigations. In the event of litigation, plaintiff’s counsel will pick apart the investigator’s experience and any shortcuts or “missed opportunities” apparent in the investigation. Accordingly, employers need to treat every investigation into alleged unlawful conduct as though litigation was a certainty not merely a possibility. That means ensuring that someone experienced and competent, aided by access to a qualified employment lawyer, is given the time and tools to conduct a prompt and thorough investigation that will withstand scrutiny.