When an employer receives a complaint of harassment, it may know to quickly initiate an investigation. What it may not realize is a that a handful of mindless mistakes throughout the investigation can easily compromise the adequacy and impartiality of the process, something courts will be evaluating should a subsequent lawsuit trigger litigation. Here are some missteps that are easy for employers to avoid:
- Failing to support a prompt investigation – Workplace investigations should be conducted by an impartial investigator. In many circumstances, that leads an employer to hire an outside investigator who needs someone internal to the organization to coordinate witness contacts. Employers would be wise to make sure their internal coordinator understands the importance of promptness. As an external investigator, it can be frustrating when a coordinator fails to make witness introductions for several days after a request has been made. While the initiation of an investigation may have been prompt, things can become unreasonably delayed if a coordinator is slow to respond to an investigator.
- Failing to keep witness participation confidential – In most cases, workplace complaints are not made publicly, and ensuring confidentiality surrounding the ensuing investigation helps guarantee its integrity. Witnesses are more likely to share their personal knowledge without feeling influenced by others if investigations are not the topic of discussion in the office. With this in mind, it is essential that witnesses are not notified who others in the investigation may be. Witness introductions should always be made individually to separate witnesses rather than in a group email to encourage confidentiality.
- Characterizing an investigation as antagonistic – Employees who submit workplace complaints often feel fearful of potential consequences, especially if they have complained about a supervisor. When communicating to Complainants that their concerns are being taken seriously, employers should avoid using language implying Complainants won’t be believed or will be subject to interrogation by the investigator. Doing so may discourage Complainants from participating, especially if they have left the organization, and ultimately result in an argument that the investigation was never intended to be impartial.
- Conducting an informal, initial inquiry that compromises credibility assessments – Knowing that external investigations can be expensive, employers may want to know more about an incident prior to initiating a formal investigation into a given situation. This sometimes results in an internal employee speaking with the parties about the relevant incident prior to initiating a formal investigation. By the time the case reaches the external investigator, the respondent has been given advance notice of the topic of the investigation and allegations against them. This compromises an external investigator’s ability to conduct an effective credibility assessment, especially if the conversation was not recorded. It is best to leave it to the official investigator to disclose the allegations against the respondent, so the investigator gets the first bite at the apple regarding the respondent’s reaction.