Investigations: They Gotta Be Real

Employers frequently seek to get investigative reports and related documents into evidence when complainants who are dissatisfied with the investigation’s outcome go on to file discrimination or harassment lawsuits.  They do this to show that they acted properly and in good faith.  Although the documents are technically inadmissible hearsay, they can be fully admitted under the business records exception to the hearsay rule or admitted only to show that the employer had a proper motive for its actions against the employee.

A recent federal court decision in an age discrimination case, however, makes an important point: for investigatory documents to be admissible, the employer has to conduct a quality investigation that actually seeks to determine if discrimination or harassment occurred. The court found that had not occurred in this case, providing a variety of reasons:

  • The investigation was conducted by a company human resources professional, not a neutral party.
  • The HR investigator selected whom to interview and what evidence to consider.
  • There was no hearing, no sworn statements, and no opportunity for the complainant to respond to the criticisms leveled against him or to examine witnesses.
  • The investigator’s report did not include evidence that would have been favorable to the complainant.  It did not include his performance reviews or interviews with the complainant’s clients or previous managers.
  • The investigation focused more on the complainant’s job performance, particularly on two difficult customer accounts, and not on whether he was terminated because of his age.
  • It appeared that the purpose of the investigation was to exonerate the company rather than to determine if the complainant was treated unfairly.  This was shown by the fact that the investigator said he would have discontinued his investigation had the complainant signed a severance agreement.  The court said that if the purpose of the investigation truly was to determine if there had been unfairness, the employer would not complete it only if litigation was looming.

In my experience, some of the court’s reasoning here is a bit extreme, particularly its criticisms of the lack of a hearing, opportunity to examine witnesses, and sworn statements.  These are not typically required elements of an investigation.  But the case does have a number of key takeaways:

  • In more complex or significant cases, it is often wise to hire an outside neutral investigator.  If that is not feasible, the internal investigator should pursue the matter with the same integrity and scrutiny that a good outside investigator would.
  • An investigator should always ask the complainant for (1) a detailed account of his or her complaint; (2) relevant documents; and (3) names of witnesses he or she would like the investigator to interview.  To the extent feasible, the investigator should then follow up on all of these allegations and leads.
  • The investigator should include in his or her investigative report any positive evidence gathered.  If despite these positives the investigator finds against the complainant, the report should indicate why the positive evidence was not determinative.
  • Once an investigation is begun, it should be completed regardless of whether the complaining employee leaves or the issue becomes moot.  In fact, even if the employee submits a complaint only after her or she has left, the employer can still conduct an investigation.  The goal should be to determine if there is a problem and to properly manage risk, not to just pay lip service to the company’s EEO policy.

Do you see any other morals to this story?  ~Amy Stephson

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