Employee Misconduct Investigations: When Punting to a Third Party Can Save the Game

For many employees-turned-plaintiffs, the unsolicited advances, kisses, groping and requests for sexual activities from a boss or coworker are less injurious than the humiliating and biased sexual harassment investigation that followed her complaint.  The investigator who is good friends with the accused, the manager who makes an insensitive comment or the fact that the alleged offender is a senior officer – any of these can lead an upset complainant running into the nearest attorney’s office.

Believe an Investigator is Biased and You’ll See It

It doesn’t take much.  In fact, although folk wisdom usually has it that “seeing is believing,” a study published in the September 2009 issue of the journal Psychological Science suggests that “believing is seeing,” too – at least when it comes to perceiving other people’s emotions. Researchers found that the way we initially think about the emotions of others biases our subsequent perception (and memory) of their facial expressions. So once as person initially interprets an ambiguous or neutral look as angry or happy, she or he will later remember and actually see it as such.   In order words, thinking has a noticeable effect on perceiving.

This research adds credibility to what misconduct investigators already know; when a complainants believe his or her motives are being questioned or that HR is partial or sympathetic to one side or another, s/he is more likely to see “evidence” to support this belief.  In this situation, the internal investigator doesn’t have to do anything wrong for an upset complainant to believe the investigation was either whitewashed or an outraged accused to argue that the conclusion was merely a pretext for firing the individual without breaching his or her contract.  This is just one of the circumstances where it pays to bring in an outsider.

Avoid Conflicts of Interest

EEOC Chairwoman Castro has repeatedly emphasized the EEOC’s position with respect to the importance of using outside investigators to conduct investigations into suspected discrimination or harassment.  Specifically, Chairwoman Castro noted that the use of outside investigators is important:

1)    where the employer lacks the resources to conduct investigations in-house

2)    where the employer wishes to have an objective and unbiased party investigate the conduct at issue;

3)    where the conduct complained of was perpetrated by very high-level employees within the company.

Although the EEOC does not generally require employers to use outside parties to conduct investigations into harassment claims, the EEOC has expressed the view that using outside investigators is important in certain circumstances, and may even be necessary where the accused harasser is a senior company official or where there is otherwise a conflict of interest.  Examples of such conflicts include situations where an investigator:

* Has a personal relationship with either party.

* Has witnessed any alleged material occurrence.

* Has very strong feelings about either the complainant or the accused

Thus, employers who indiscriminately conduct internal investigations not only lose what advantages exist for having neutral third parties conduct such investigations, they risk running afoul of EEOC guidance.

Making a Case for Independence

In addition to reassuring a complainant that the investigation is fair and impartial, hiring a third party reduces the risk that an employee will be disciplined or discharged for something he or she did not do and provides a powerful defense against a claim that the company condoned unlawful conduct in the workplace.

Employers should consider using an outside investigator for four reasons:

1)    Promptness. Misconduct investigations should, as a rule, be completed within two weeks of the initial complaint.  The outside investigator will be brought in specifically for the purpose of carrying out the investigation and will not require that someone from the organization find time in his or her schedule to do the work.

2)    Expertise. Outside investigators are specialists whose expertise results in a more thorough investigation.  This expertise is particularly critical when the allegations are serious in nature and the stakes are high, such as sexual assault.  In addition, outside investigators have the courtroom experience that will make them a powerful witness should the complaint eventually go to trial.

3)    Impartiality. Although the employer hires the investigator, there still is the sense that the investigation is not an “inside” job. Employees are generally more open and more willingly share more information with an outsider who will not have to “live” with either the accused or the accuser after the investigation.  This is especially true when the allegations are against a high-ranking individual.

4)    Confidentiality. There is a strong need for confidentiality during a misconduct investigation.  Hiring an outside party, who is more likely to be perceived as an authority figure, reduces the odds the complaint process will be a topic of water cooler conversation and reassures the complainant that s/he will be protected from retribution.

The Bottom Line

Former Supreme Court Justice Potter Stewart once said that Fairness is what justice really is. Increasingly, the fairness scales are tipped in favor or employers who use outside investigators to investigate misconduct allegations, particularly when they involve a potential conflict of interest, possible litigation, or high-ranking individuals.

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One Comment on “Employee Misconduct Investigations: When Punting to a Third Party Can Save the Game”


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