With EEO investigations, says attorney Jonathan Segal, whatever you do, you are wrong. Someone’s going to be unhappy: either you didn’t investigate hard enough or you investigated too hard.
Here are four more practical tips from attorney Jonathan Segal (see yesterday’s Daily for his Six Killer Mistakes) on staying out of hot water when you investigate misconduct.
Segal, a sought-after speaker on HR legal topics, is a partner in the Philadelphia office of law firm Duane Morris LLP. His remarks were featured at a SHRM Annual Conference and Exposition.
Tip #1. Make “appropriateness ” conclusions, not ‘legal’ conclusions.
When stating your conclusions after an investigation, always avoid legal terms, Segal says. Focus on inappropriateness, not unlawfulness. For example, don’t say “he harassed her” or “she discriminated against him.” That tends to guarantee the success of your employee’s lawsuit. Instead, focus on conclusions on appropriate or inappropriate behavior.
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Tip #2. Deal carefully even when complaints lack merit.
If you decide that a complaint lacks merit, take time to explain your findings to the complainant. Provide assurances that there will be no retaliation. Follow up at regular intervals with the employee who complained.
To the person who was wrongly accused, say, “It’s important that employees be able to make complaints without fear of reprisal, so, even though it’s a natural tendency to want to react when someone accuses you falsely of egregious actions, we’re asking you to rise above it and treat the complainant as if nothing happened. Although the complaint had no merit, retaliation would still be actionable.”
Tip #3. Brief people who want to apologize.
Often accused parties want to apologize, which seems so simple, but it’s not, says Segal. You can permit it, but you need to script the apology. Otherwise, your accused manager will come up with something like “I’m sorry that you are so sensitive.”
That line is going to send people back to their lawyer’s office. Script something more like this, says Segal: “I understand that my actions made you uncomfortable. While it was not my intent, I apologize and it will not happen again.”
Tip #4. Deal firmly with witnesses who won’t cooperate.
If witnesses refuse to cooperate or say, “I don’t want to get involved,” how should you respond? Segal notes that while you may technically be able to discipline or fire someone for not participating in an investigation, he doesn’t recommend it.
First, ask the person nicely, then less nicely. Remind the person that it is critical that they participate for the organization to maintain its standards regarding discrimination or harassment.
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You can also appeal to people’s self interest, says Segal. First, let them know that they are involved already—the question is what role they want to play. They could be called as a cooperative witness who is helping the company uphold its standards, or as someone who refused to cooperate and maybe has something to hide.
If they still won’t cooperate, ask them to go home and think about it. It’s not just a legal imperative, it’s a moral value for the organization. They will usually come around, Segal says.
Investigations, harassment, discrimination, retaliation, and witnesses who won’t talk—the challenges for HR seem endless.