January 23, 2017

There is not an employer in the world who looks forward to conducting a workplace investigation.  The very need for an investigation signals a significant problem such as claims of workplace discrimination, harassment or injury.  It is a human inclination to sweep problems under the rug.  It is in your organization’s best interests, however, to be proactive in the face of a complaint.  Importantly, a properly-conducted investigation can provide the organization with an affirmative defense to a hostile work environment claim.  Conversely, the failure to properly investigate can bring Plaintiffs’ attorneys sniffing around your door.  

Let’s use examples of how two contrasting organizations might respond to the same set of facts:

The Underlying Facts
On Tuesday, January 3, 2017, at 8:15 am, Jane, a seven-year employee, asked to speak privately with the organization’s Human Resources Director, Toby.   In that conversation, Jane described lewd sexual conduct by her supervisor, Paul.  Jane claimed it had been going on for several months and that, just recently, Paul told Jane that if she didn’t sleep with him, she would be fired.  Paul’s record with the organization was exemplary, in fact this was the first complaint against him of any kind.  Jane, on the other hand, had recently been given four warnings for failure to show up to work on time.  Toby did not know Jane on a personal level and never socialized with her outside of the workplace.  Toby and Paul, however, attended the same Thursday evening “poker night,” and oftentimes shared a ride to that weekly event.

Organization A’s Response
In response to Jane’s complaint, Toby said he needed a minute to think about it.  Three days later, he contacted Jane and scheduled an appointment with her for the following Tuesday.  

In the meantime, on the way to poker on Thursday evening, Toby spoke with Paul about the allegations.  Paul laughed it off, denying ever having done anything inappropriate and claiming Jane was a “nut-case” looking to excuse her repeated tardiness.  Toby listened but did not ask any follow-up questions.

During his half-hour meeting with Jane the following Tuesday, Toby asked for a detailed account of the harassment and took extensive notes.   Jane described the alleged harassment in vivid detail.  She identified other employees who may have witnessed the harassing incidents and said she had spoken with at least three of those co-workers about the inappropriateness of Paul’s behavior.  Toby inquired as to why Jane had been late to work so often in recent months.  She replied that Paul’s behavior had made her physically ill and that she had a hard time getting out of bed in the morning.   Toby did not speak with any other employees or conduct any further investigation into the matter and noted in his final incident report that he had found Jane’s story not likely to be truthful.

A week after the interview, Toby called Jane and informed her that “in his opinion,” no sexual harassment had taken place.  He thanked Jane for raising the issue and encouraged her to come speak with him if anything else came up.  He informed Jane that she was being transferred to another department that could utilize her skills, but that she would need to work a different shift than she had been working.  Toby then indicated that her claim was resolved.

Organization B’s Response
Toby responded to Jane’s initial complaint by assuring her that he took the matter very seriously and promptly met with the Senior Vice President of Internal Affairs.   The VP authorized Toby to hire outside legal counsel, Wilma, to investigate.

Wilma appeared onsite by 3:00 that very afternoon.  She conducted individual interviews with Paul, Jane and all employees identified as witnesses or confidants.  The interviews wrapped up by 10:00 the following morning.  Wilma took extensive notes throughout the process and made sure at least one other person (Wilma’s assistant) was in the room.  Wilma also reviewed the personnel files of each person she interviewed.

Within 24 hours, Wilma prepared a report for Toby suggesting that no immediate action be taken, but that the organization should consider transferring Jane to another department to avoid further conflict. She also recommended that Toby give Jane the option of staying in her current job.  Within her report, Wilma cited the fact that each of Jane’s witnesses had been reprimanded by Paul within the past month.  Toby informed Jane of the organization’s decision not to take further action, but offered Jane a transfer to another department that could utilize her precise skillset.  Jane declined.

The End Result
Imagine that in either scenario, Jane sued the organization for sexual harassment and for maintaining a hostile work environment.  Without belaboring the point, Organization A loses that case and is hit with a $2 million jury verdict while Organization B is able to successfully defend the suit.  The below chart summarizes Organization A’s mistakes and Organization B’s correct measures.  




  • Do not delay the investigation, keywitness interviews or the organization’s decision.
  • Do not have an untrained employee conduct the investigation.
  • Do not selectively choose witnesses.
  • Do not conduct any interviews in a casual setting.
  • Do not mandate that the complainant switch jobs or shifts to avoid the accuser.
  • Respond immediately to a crucial complaint.
  • Engage qualified internal staff or use a neutral, outside consultant to conduct the investigation; preferably one with workplace investigation experience.
  • Have a witness present during all interviews.
  • Talk to all relevant witnesses.
  • Review personnel files on the complainant, the accused and on all key witnesses.
  • Allow the complainant the option of moving away from the accuser, but do not mandate it.