Go ahead and say it. “Every investigation is different.” I agree with you. Any two situations involving people will be different. People’s actions, emotions and beliefs, etc. are all over the board. But there is a difference between the outcome of an investigation and the process of an investigation. And the process can and needs to be consistent. Not just for liability protection, but for the people involved in the investigation. Let’s look at the legal reasons for consistency first. And then we will dive into the reasons why your people and culture depend on a consistent process.
The EEOC Preliminary FY 2018 Sexual Harassment Data states that the EEOC alone recovered nearly $70 Million for victims of sexual harassment. That’s up from $47.5 million in FY 2017. And that doesn’t include discrimination claims or claims made to state agencies. So, we know that the need for consistent, defensible investigations is increasing. In our discussions with thousands of HR professionals over the past 3 years, over 95% stated that their investigation process was not sufficiently consistent and could create liability exposure. A significant amount of that exposure is due to potential discrimination within the investigation process. In a recent article published by the American Bar Association, “An Attorneys Guide to Workplace Investigations” the author stated that the investigator’s method of recording and memorializing witness interviews must be accurate, complete, unbiased and trustworthy. The following are two examples of where inconsistent interviews could lead to liability.
Example 1: An employee came to HR with information on an incident that took place between her and two female employees. The accused were interviewed by different managers because they work in separate locations. Both interviews began with a standard set of questions, but additional questions took completely different paths. Although it is encouraged to ask clarifying questions based on the responses to core questions, it is important that additional questions are not added to one interview based on the perceptions of the interviewer. The first accused was asked clarifying questions based on observances and recollection of facts that took place during the incident. The second accused was asked additional questions regarding her feelings toward the victim based on the interviewer’s perception of her sexual orientation. The first accused was not found to have violated company policy or law. The second accused was found to have violated company policy. She then filed a complaint of discrimination against because she was asked questions about her feelings toward the victim based on her perceived sexual orientation, when the other accused was not.
Example 2: Two witnesses to an incident that took place at a company-wide event were interviewed by two different managers. The recollection of what happened during the incident were completely different between the two. The findings of the investigation were based on one of the witness testimonies, as the other witness was determined not to be credible. The findings were that the complaint was not substantiated based on witness testimony. The victim filed a complaint with the EEOC stating that there were two people that witnessed the incident and one confirmed her claim. When the EEOC reviewed the investigation file, their determination based on the interview notes was that one witness had been subject to bias according to the questions asked, tone of the questions, and the interviewer’s comments and judgements made during the interview. As such, the investigation may be deemed insufficient, negating the employers affirmative defense which allows an employer that exercised reasonable care to prevent and promptly correct harassment to rebut a harassment claim.
Impact on Culture
Although liability is a huge concern, the negative impact an inconsistent investigation process can and will have on company culture can be just as costly. When employees don’t feel as though they can trust the investigation process, that they will not be treated fairly and respectfully, or don’t think their complaint will be taken seriously, they do not come forward. Employee that feel they have been disrespected or treated improperly, carry these feeling with them. They fester, resulting in disengagement, increased absenteeism and often the employee will leave the company. But before they do, they will often spread the seed of ill will to others inside and outside of the company.
The EEOS Select Task Force Report includes the following findings, that sum these situations up very clearly:
Ultimately, how an employee who reports harassment (either directly experienced or observed) fares under the employer’s process will depend on how management and its representatives act during the process. If the process does not work well, it can make the overall situation in the workplace worse. If one employee reports harassment and has a bad experience using the system, one can presume that the next employee who experiences harassment will think twice before doing the same. Finally, ensuring that the process that commences following a report is fair to an individual accused of harassment contributes to all employees’ faith in the system.
It is no longer enough to have a policy that is communicated to employees every year or so, some templates that are used by HR and managers when a complaint is filed, and hope all investigations are being conducted consistently. We all need to take steps to ensure a respectful, consistent and effective investigation process in order to build a trusting and civil workplace culture that drives positive change.
Let InvestiPro help change your employee’s perception of HR investigations. It’s as easy as:
You’ve got a problem. We’ve got a process. Let’s fix this together. See how it works.