By: Ann Fromholz
Originally published in Law360 on October 22, 2017
Earlier this year, an executive with a real estate developer alerted the company’s general counsel that comments and rumors about her sex life that were circulating throughout the company, from hourly employees and assistants to the Csuite, were so personally and professionally damaging that she was too upset to work.
The general counsel took immediate action. He called the company’s outside employment counsel, who advised that the company needed to conduct an immediate investigation into the executive’s complaints. Because no one at the company was trained or equipped in workplace investigations, the lawyer advised that the company engage an outside expert, a lawyer whose practice focuses on workplace investigations.
As the investigator, I reviewed the complainant’s demand letter and developed an
investigation plan. My first order of business was to interview the complaining employee (which is usually the case). But when I emailed and called the executive to schedule an interview, the executive did not respond. Finally, after three attempts without a response, the executive’s lawyer responded that the executive would not agree to be interviewed.
This situation happens more frequently than one might imagine. A complaining employee, who may be the only person who can provide the details of her complaints, refuses to be interviewed. The employee may refuse because her lawyer recommends that she not be interviewed, she is too nervous to be interviewed, or some other reason. Whatever the reason, the investigator then needs to determine whether and how to investigate without the complainant’s testimony.
The U.S. Equal Employment Opportunity Commission’s existing enforcement guidance on harassment investigations requires a “prompt, thorough and impartial investigation” into complaints of workplace misconduct. The guidance further provides that, “when detailed factfinding is necessary, the investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information.”
Even without an interview of the complainant, the investigator likely has enough information to determine which witnesses to interview and which questions to ask. The investigator may not know everything about the complaining party’s complaints, but likely has enough information from the initial complaint to start asking questions. The answers to those questions, from witnesses other than the complainant, will often lead to other witnesses and other questions, and eventually can provide a fairly complete picture of the situation.
The EEOC proposed “Enforcement Guidance on Unlawful Harassment” in January 2017, but that guidance is not yet final. The proposed guidance provides that an investigation is effective if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.”
If, however, the investigator chooses to stop the investigation when the complaining party declines to be interviewed, the investigator risks failing in her duty to conduct a prompt, thorough and impartial investigation.
In May 2017, the California Department of Fair Employment and Housing issued new guidance for preventing and addressing workplace harassment. That guidance specifically addresses the basic steps to ensure a fair workplace investigation and says that due process is the goal. The guidance provides that the investigator should interview the complaining party, “give the accused party a chance to tell his/her side of the story,” interview relevant witnesses, and review relevant documents.
The guidance also provides that the investigator “do other work that might be necessary for [her] to get all the facts,” and “reach a reasonable and fair conclusion based on the information [she] collected, reviewed and analyzed during the investigation.”
The DFEH guidance therefore makes clear that there are elements of an investigation that are as essential as the interview of the complaining party.
Once the employer is on notice of a complaint of workplace misconduct, the investigator should conduct those elements of the investigation regardless of whether the complaining party chooses to participate.
The investigator’s report will detail the efforts to interview the complaining party and will detail the other steps the investigator took to conduct a thorough and fair investigation, even without the participation of the complaining party. The report will say that the complaining party refused to be interviewed and will say that the investigator is making factual findings and drawing a conclusion without the benefit of the complaining party’s input. The investigator or the employer likely will report to the complaining party that the investigation has concluded without her involvement.
On occasion, the specter of the investigation concluding without the complaining party’s input is enough to convince an otherwise recalcitrant complainant to participate, in some fashion, in an interview.
I know of investigations where the complainant insisted on being interviewed with her lawyer present and others where the complainant agreed to respond to written questions but still refused to be interviewed. Whether to agree to those terms is a judgment call that the investigator must make, weighing the benefit of gathering facts directly from the complainant against the diminished credibility of that testimony because it was influenced or perhaps even written by the complainant’s lawyer. Of course, the report in such an investigation will reflect the relative weight that the investigator gives to the complainant’s testimony as compared to testimony from witnesses who were more forthcoming.
The reluctant or refusing complainant creates a hurdle for a workplace investigator in her path to a complete investigation that arrives at a reasonably fair estimate of the truth. But the hurdle is one that a thorough and persistent investigator can overcome, either by thorough interviews of coworkers and other witnesses and a careful review of evidence, or by allowing the complainant to participate in the interview even with restrictions mandated by the complainant’s lawyer.
The investigator’s ultimate goal is to find the facts and reach a reasoned conclusion, not to stand on ceremony regarding exactly how the complainant ought to participate.