Fighting back against management’s investigation
The problem with management’s investigation
The law (the Federal Civil Rights Act of 1964 and most state anti-discrimination and anti-harassment laws) requires employers to take prompt and effective remedial action after they receive a complaint of harassment.
An employer may even be able to protect itself from liability by conducting such an investigation. Federal courts have made the following comments about an employer’s investigation of a complaint of harassment:
- “All that is required of an investigation is reasonableness in all of the circumstances . . . includ[ing] conducting the inquiry informally in a manner that will not unnecessarily disrupt the company’s business, and in an effort to arrive at a reasonably fair estimate of truth.”
- “In hostile work environment cases, the employer can avoid liability for its employees’ harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.”
- “[A] good faith investigation of alleged harassment may satisfy the ‘prompt and adequate’ response standard, even if the investigation turns up no evidence of harassment . . . [and] a jury later concludes that in fact harassment occurred.”
However, employers often try to use the investigation in an improper way to learn about your case without a real attempt to deal with the problem.
The way the employer uses the investigation improperly is for either it or its attorney to request an interview with you without the presence of your attorney. The employer will claim that it is doing this to fulfill its legal obligations. However, the employer will designate the investigation as legally “privileged” (using the attorney-client and other legal privilege doctrines). If the investigation is favorable to the employer, then it will later waive the privilege and produce the investigation report and witness interview notes. But if the investigation is unfavorable to the employer, then it will refuse to waive the privilege and thereby prevent you, the judge, and the jury from ever learning that its own investigation corroborated your claims.
This tactic puts you in a classic Catch-22:
- If you refuse to participate in the interview, the employer can conduct a cursory investigation and then argue that it did the best investigation it could in light of your refusal to participate. The employer may also argue to the jury that if you had really been harassed, you would have been eager to participate in the investigation. Finally, some employers will even use your refusal to participate as a pretext to fire you for failing to cooperate in their investigation.
- On the other hand, if you yield to the employer’s request, the employer can achieve its objective of depriving you of an attorney while it learns about your case.
Fighting back if you are still employed
Document your cooperation
There are several tactics that your attorney can use to fight back against the employer’s improper motives. If you are a current employee, then you generally have an obligation to participate in the investigation. However, you and your attorney can document everything that goes on to show that you were fully cooperative.
Don’t provide two interviews
If you have already made a complaint and been interviewed by the employer as part of its internal investigation, and then later the employer and/or its lawyer wants to re-interview you, then you should probably reject that request.
Even though you have an obligation to participate in the investigation, your attorney can argue that the employer should not be entitled to two tries.
Put the rules for your interview in writing
If the employer has not previously interviewed you, then you should generally provide some type of participation in the employer’s investigation.
However, you and your attorney should first try to learn whether the employer’s investigation is being conducted by a purportedly neutral investigator or by the employer’s lawyers. You should also try to determine whether the employer considers the investigation to be covered by the attorney-client privilege.
If the investigation is not to be covered by the attorney-client privilege and/or is being conducted by a purportedly neutral investigator, then it is hard to object to having you participate in the investigation. However, if the employer is conducting an attorney-client privileged investigation, then you may not want to participate.
You and your attorney might try to determine the employer’s intentions regarding these things by a written response to the employer’s request that you participate in the investigation. For example, you might send a response something like this:
You have requested that I submit to an interview as part of your supposed investigation into my claim of harassment. I am ready, willing, and able to participate at any time and place that you desire. However, prior to doing so, I would like to receive your written assurance that you are conducting this investigation as required by the company’s anti-harassment policy and federal and state law and that you are not conducting this investigation as part of an attorney-client privileged investigation that you will undoubtedly keep secret from me and a jury unless it favors you. As soon as you inform me in writing that you are waiving any attorney-client or other privileges that might otherwise cover the investigation and the results of the investigation and that you will share that information with me and a jury, I will participate.
Request the presence of your attorney
One tactic to consider in response to an employer’s request to interview you is to indicate that you are willing to be interviewed so long as your attorney is allowed to be present and so long as your attorney can sit in on all of the other interviews.
In many cases the employer will drop the issue and no longer ask to interview you after you have requested this sort of exchange.
Prepare a written complaint
Another tactic is to prepare a detailed written complaint that sets forth your allegations in an accurate, concise, sympathetic, and persuasive manner. You and your attorney should work together to write this complaint, and the complaint may go through several different drafts.
One of the things that you may want to include in the written complaint is language that prevents you from being tied down, such as:
At your request, I have prepared this complaint to provide you with several examples of the type of [discrimination] [harassment] [retaliation] to which I have been subjected. This complaint does not by any means detail this inappropriate conduct or list all of the inappropriate conduct to which I was subjected.
Notwithstanding this type of disclaimer, the written complaint should contain as many examples of the offensive conduct as possible and in as much detail as possible.
The complaint should not only contain comprehensive details regarding the harassment to which you were subjected, but it should also contain information that tends to support your allegations. For example, if the harasser has harassed others, this fact should clearly be mentioned in the complaint. Similarly, if you have been reluctant to complain previously, the letter should provide some reason for the delay. For example, “I have been reluctant to complain about [name of harasser]’s conduct until now because [I have heard that people who complain about harassment are labeled ‘trouble-makers’ and are retaliated against] or [I know that several other women have already complained about [name of harasser] and that the company never did anything to stop the harassment.]”
After this document has been prepared, you should take it to your interview and hand it to the investigator to supplement your interview. This way, even if you forget to mention some of the incidents during the interview, you will have documented the incidents in the written complaint.
Fighting back if you are a former employee
The general rule: You should not participate
As a general rule, because former employees are not obligated to participate in an investigation by their former employers, you should not participate in the employer’s investigation.
There are several reasons for this:
- First, the employer is not conducting the investigation to help you or to actually determine whether your claims are valid. Rather, the employer is only conducting the investigation to protect itself and to obtain free discovery from you.
- Second, it is simply not fair to you to have to go through an investigatory interview in which you will have to relive emotionally troubling events and then later also have to go through a deposition in which you will not only have to relive those same events but also be cross-examined as to any minor differences between what is said in the interview and what is testified to in the deposition.
Exception #1: You should participate if your attorney can interview the employer’s employees
If the employer is willing to allow your attorney to interview the employer’s employees, it might be worthwhile to allow the employer to interview you.
This sort of exchange of allowing the employer to interview you if your attorney is allowed to interview the employer’s employees may take considerable negotiation between your attorney and the employer’s attorney.
Exception #2: You should participate if the investigation will be truly unbiased
If the employer is willing to conduct a truly unbiased investigation, it might be worthwhile for you to participate in the investigation.
A truly unbiased investigation is one in which all three of the following conditions are satisfied:
- The employer, in advance of the investigation, irrevocably waives any and all privileges in the investigation.
- The parties jointly select and communicate with the investigator.
- Upon conclusion of the investigation, the investigator jointly provides all parties with his or her investigative report and all witness interview notes.
If the proposed investigation is not truly unbiased, failing in any of these three requirements, then you should probably not participate in the employer’s investigation.