How to handle discrimination complaint investigations

The Society for Human Resource Management believes that conducting workplace investigations is one of the most challenging duties that HR professionals must take on. This is especially true for Massachusetts cities and towns, some of which are unable to staff a dedicated HR person, let alone a full HR team. The responsibility to handle a discrimination complaint will often fall on the shoulders of management, people who may or may not be trained in handling these types of situations.

When mistakes are made, it’s often due to either a lack of training or pressure to resolve complaints quickly. There is a much higher level of awareness of the issue of discrimination in the workplace these days, and it’s important for employers to be diligent.

“When trying to decide what complaints to investigate,” said attorney Regina Ryan of Louison, Costello, Condon & Pfaff, “you should always investigate any formal or informal complaint – if there is a rumor with a suspicion of misconduct – or a receipt of a grievance from the Massachusetts Commission Against Discrimination or the Equal Employment Opportunity Commission.”

MCAD training materials cite examples of discriminatory claims, all of which should be followed up on in any workplace. The examples include the following:

• “My subordinate Jenny emailed a sexual joke to me.”
• “Just between us, I’m sick of Jim always asking me about my sex life.”
• “I know you’re investigating John’s comments to Jose, but what about his comments to Julio?”

Attorney Ryan, based on her training at the MCAD, identified the following steps for a complaint investigation:

• Investigate promptly
• Maintain confidentiality as practicable
• Interview relevant parties and review relevant documents
• Prevent retaliation
• Take interim measures pending the results
• Reach a determination and write up a report
• Take remedial action and follow up

When a complaint is received, employers should consider consulting an attorney to guide them through the process. The person chosen to conduct interviews internally should be impartial and not connected to the reported incident. It’s a good idea to hold interviews in a conference room without windows, or at an off-site location, to ensure confidentiality.

The interests of all parties – the complainant, the accused, any witnesses and the employer – must be considered. If an internal resource is chosen to conduct a discrimination complaint investigation, it’s important to ensure that the individual has been fully trained.

Planning and conducting an interview

1. Collect information.
The employer should gather all documents relevant to the events, including personnel files, Equal Employment Opportunity files, organizational charts, workforce profile, relevant policies, comparative information, training materials, and sign-in sheets. The key role of an investigator, Ryan said, is to promptly understand the five W’s: what, when, who, where and why.

2. Create a timeline and an outline of facts.

3. Plan for the interview.
• Determine who should be interviewed and in what order. Consider starting with the accuser, followed by the accused and then witnesses.
• Meet with as many people as necessary to determine what happened, and with as few as possible to avoid getting more people involved than necessary. Consider whether legal counsel and/or a union representative should be present.
• Conduct interviews as soon as practicable, but not back-to-back because you don’t want subjects waiting outside of the room.
• Determine where to hold interviews. On-site or off? In a private conference room?

4. Conduct the interview.
• Develop standard talking points about yourself, the investigation, the witness’s rights, and the witness’s obligations.
• Explain who you are, what you are investigating, and to whom you will report your findings.
• State that no determinations have yet been made.
• Explain the investigation – why is it being done and what may happen as a result.
• Explain that it is unlikely that anyone will be given a copy of the investigative report.
• If the individual being interviewed is the accused, let him or her know. Maintain confidentiality to the extent practicable.
• Ask the accuser what he or she wants to get out of the investigation.
• Explain that the accuser should file an additional complaint if the concerning behavior does not stop after the investigation.
• Confirm that the accused received a copy of the employer’s policies and procedures.

5. Write the report.
The report should include the following:

• Scope of the investigation
• Summary of the allegations
• Witnesses interviewed
• Documents and material reviewed and/or relied upon
• Findings of fact
• Policy violations and conclusions
• Recommendation(s)

6. Create and complete the Investigative File.
Confidential Investigative File: Type up notes and create a record of the investigation. Include the investigative report, but do not distribute.

Personnel File: Note the type of discipline, if any, and make sure that the employee’s name, and no other, is included.

After the investigation
Options for discipline depend on the extent of the finding. Examples of progressive discipline include:

• Verbal or written warning
• Required counseling or training
• Leave with pay or suspension without pay
• Transfer
• Demotion
• Last-chance agreement
• Termination

“As potentially disruptive as investigations can be, they must be prompt, thorough and effective to ensure everyone’s protection,” states the Society for Human Resource Management. “Responsiveness to a complaint and an investigation will not only yield the best information and evidence, but it will also enhance both the investigator’s and the employer’s credibility. Investigations can help the organization identify and resolve internal problems before they become widespread.

“Given that every complaint has the potential to become a lawsuit, employers should investigate every case in a manner in which it can be presented to a court of law, if necessary.”

In the end, the investigator must weigh the evidence and conclude whether workplace policies were violated or misconduct occurred. By ensuring a fair investigative process, management professionals also can help build morale and trust among employees.

Stephen Batchelder is MIIA’s Director of Risk Management.