We are a social service nonprofit that has, at this point, 35 employees.
Until now, we have had a very good—some might say remarkable—history of maintaining good employee relations, with no complaints for discrimination or harassment in the nine years of our existence.
But all good things come to an end. We were shocked this week when a senior staff employee made a complaint of racial and sexual harassment and retaliation against their long-time supervisor. It is alleged that during a meeting about one of the cases the complainant was handling, the supervisor made some graphic sexual overtures, and when those overtures were rejected, the supervisor responded with certain very offensive racial slurs.
After that meeting, the supervisor reassigned the case to another less experienced staff member.
These allegations are shocking to us. We find it hard to believe, after years of working with them without any indication of such behavior, that the supervisor would act in this way. The relationship between the complainant and the supervisor always appeared to be highly professional and very collaborative.
We know that the equal opportunity laws require us to conduct a prompt, thorough, and fair investigation and to use the findings of the investigation as a guide for making determinations of how to resolve complaints in the future. However, our concern is that management’s extensive knowledge of and experience with both parties may affect our objectivity and compromise the outcome of the investigation.
We have been told that perhaps the best way to avoid this possibility is to retain an independent investigator, someone from outside the organization who would not know the people involved. While we do understand the logic of this course of action, the cost would be considerable. We are also concerned that someone from outside our nonprofit might not understand the dynamics of how our employees do their jobs as context for the complaint. Too little knowledge could be as compromising as too much.
Can you give us some tips on whether to do this ourselves or to retain an independent outside investigator? Also, can you give us some guidance on how to conduct the investigation if we decide to keep it in-house? We have never had to do this before, and if we do it ourselves, we want to be fair to all sides to reach the proper outcome.
Your long record of not having to conduct a workplace investigation is commendable. However, your change in situation is not unusual. Many employers find themselves in the unenviable position of having to investigate fellow employees.
Handling such investigations is not easy on either an emotional or a professional level. It is one thing to look into and correct (or discipline) employee performance on a regular basis—that is the nature of the employment relationship—but quite another to dissect the interactions between employees you have long known and trusted when the outcome could mean financially devastating lawsuits to the parties involved, including the nonprofit itself, loss of trust from existing staff and even the end of careers.
Let’s start with the basics. You have correctly noted that virtually all equal employment opportunity (EEO) laws require the employer to conduct a prompt, thorough, and fair investigation of any complaint received of workplace discrimination, harassment, or retaliation that involves a protected class or activity. The complaint you received alleges racial and sexual harassment and discrimination, as well as retaliation for not submitting to the alleged advances—a complaint that involves the protected classes of race and gender.
There is a duty, therefore, to investigate these allegations. And, in fact, not doing so properly can itself create serious legal risk
Whether you handle the investigation internally or bring in an independent outside investigator depends on several considerations. At heart, the decision made must ensure a rigorously competent, objective, and fair investigation, to make sure that any resulting decisions about the employees involved are well-supported.
Let’s look individually at these elements to consider.
Because of the potentially serious consequences that flow from these investigations, the person or persons who will be interviewing, collecting, and reviewing the documentary evidence and coming to conclusions about whether or not the allegations are substantiated must know what they are doing.
First of all, the in-house investigator (or investigators) should not be novices at the task. They should have solid experience in conducting such investigations so as to be able to detect anything unusual or questionable in the statements of the witnesses or parties to the dispute, and to deal with them appropriately. This would include, among other things, recognizing and responding to any changes to statements made previously or any conflicts in the various stories related by witnesses or the parties in dispute.
Additionally, these investigators should be given refresher training in the legal aspects so that they thoroughly understand the EEO issues raised by the complaint and refresher training also in proper investigation techniques, including how to ask questions that will best elicit relevant information and how to make credibility assessments of the witnesses they talk to. This refresher training is important for establishing that the skills of the selected investigators are sharp and current.
It often happens that the person selected to conduct an internal investigation knows of, is well acquainted with, or has had long-lasting friendships with one or more of the individuals who have made or responded to the complaint under investigation. While such an investigator may try to be objective in their approach to questioning the parties and witnesses, the reality is that such impartiality is difficult, if not impossible. Though they may seriously and honestly seek to address potential concerns and rule out any preexisting impressions or partiality, in the end it may not be possible.
One of the most serious attacks on an investigation that the party aggrieved by the outcome can bring is to call into question the objectivity of the process and to claim that the outcome was foreordained. If there are solid acquaintances or even friendships between the investigators and anyone involved in the case, this is a charge that can be difficult to refute. If there is any doubt in the investigator’s mind that their preexisting knowledge or relationships will even slightly compromise the objectivity of the investigation, bringing in a completely independent party to assess every witness with complete impartiality is essential to ensure the objective integrity of the process.
While fairness inherently involves the issues of competency and objectivity already covered, it also means something more. It means going into the process with the attitude and commitment that all witnesses will be heard with an open mind and given an equal and full opportunity to provide all the relevant information they may have. It means not prejudging anything and not making any final judgments until all the evidence is gathered and completely evaluated.
Fairness means that the investigator will not be subject to pressures, express or implied, from other employees, supervisors, or even board members who align themselves with one side or another to consider those loyalties when conducting the investigation and reaching conclusions.
Fairness also includes procedural fairness. It means that whatever time is needed should be taken to thoroughly interview the witnesses and review the documents involved in the dispute. The day-to-day job pressures we are all subject to should be set aside, when possible, to ensure that adequate time is devoted to the important task of conducting a quality investigation.
It also means that the investigator should devote enough time and resources to analyzing the information gathered and to writing a complete investigation report that, if things take an unfortunate turn to litigation, may be evidence in a lawsuit someday.
In summary, when making the decision whether to investigate these complaints internally or with an outside investigator, be sure to seriously and cautiously evaluate the circumstances with these three factors in mind. If it appears that no one within the nonprofit can properly offer the competence, objectivity, and fairness that the task requires, then you should give serious consideration to retaining an outside investigator who can. While the cost can be, and often will be, considerable, perhaps even prohibitive, if the result is a fair and impartial investigation of the utmost integrity, such that the decision cannot be reasonably disputed, then this will have been money well spent.
One additional caution about outside investigators. Avoid the temptation to use your nonprofit’s attorney to conduct the investigation. While attorneys, in general, are well suited to meet the elements here discussed, and while your attorney may be competent, your attorney is not objective. Their pre-existing relationship with your nonprofit will almost guarantee a perception of bias. In addition, since any investigators, in-house or outside, become witnesses who may have to testify if litigation results, using your attorney means that attorney acting both as investigator and witness, which may result in a loss of any attorney-client privilege with respect to communications between you and your attorney in the handling of the complaint. Neither your attorney nor you want this to happen!
With all of this in mind, if you decide you are equipped to properly conduct this investigation in-house, the next step would be to create a game plan for the nuts and bolts of conducting the investigation.
We will talk about that next month.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.