I recently attended a 2-day training program in Boston conducted by the Massachusetts Commission Against Discrimination (MCAD) called Conducting Internal Discrimination Complaint Investigations. This was a high quality training program that incorporated carefully thought out modules with practical exercises conducted by Rebecca Shuster, Director of Training at MCAD, and Attorney Judy S. Kalisker, Principal, Compliance Plus. While I have conducted discrimination investigations many times, this type of high quality investigation training is so hard to come by that it is worth spreading the word about it. Here are a few of my take-aways from the training:
1. Understand when the duty to investigate kicks in
Businesses should have handbooks that contain anti-discrimination policies that provide for an investigative process when they receive concerns from employees of discriminatory treatment. However, supervisors sometimes believe erroneously that only more serious concerns require investigating and do not investigate when they perceive a concern to be trivial. In order to protect the interests of the business, supervisors are well advised to look into all concerns raised by employees. While every concern does not necessarily require a week-long investigation, the company must look into issues in order to understand whether the employee has been discriminated against or whether a company policy has been violated. Further, without looking into an employee’s concerns, the company will not know whether other employees are also impacted and could lose a defense to a future claim of discrimination. Once deciding that an investigation should be done, another important consideration is deciding who will conduct it.
2. Decide who will conduct the investigation
If an investigation is to have any value, it must be conducted by someone who has been trained in conducting investigations or has experience doing so. The credibility of the investigation findings and results may be discredited if the investigator is not qualified. Every investigator must be prepared that his or her investigation process and findings will be closely scrutinized. Also, if the person accused of the discriminatory, harassing or retaliatory conduct is a high level or senior manager, the company should strongly consider hiring an investigator outside of the organization in order to protect the integrity of the investigation. The outside investigator could be its employment counsel or a third party trained in conducting investigations. If a third party is hired, the company should consider utilizing its employment counsel as the liaison with the investigator to be able to keep conversations with the third party confidential. However, it is very unlikely that the company will want to keep the investigative report itself confidential in the context of litigation. These are consideration that must be discussed and analyzed prior to beginning the investigation. Once the investigator has been selected, it is worth taking the time to plan the investigation.
3. Take the time to plan the investigation
While there are sometimes circumstances when investigators want to begin the investigation immediately, most of the time the investigator can take 24 hours to thoughtfully plan his or her course of action. The investigator must confirm the scope of the investigation by determining the legal issues being looked into, the witnesses to be interviewed (and order of witness interviews) and the documents to be reviewed. While the scope of the investigation may change during the investigation, it should not broaden into encompassing every area of employment dissatisfaction that the employee has. The investigator must understand the scope of the investigation and tactfully manage its parameters. In order to successfully do that, the investigator must have experience and skills.
4. Conduct interviews – skill and practice required
One of the objectives in conducting an investigation is to find out what is going on in the workplace. To find out that type of sensitive information and assess its accuracy requires strong interpersonal skills. It requires the ability to listen and to adapt the interview questions as information is disclosed. Most importantly, it involves establishing trust with witnesses so that they are comfortable disclosing what is often very personal information. Not everyone in a supervisory position possesses the skills necessary to conduct a quality investigation. The company should take the time to identify management personnel who do possess those qualities and who will be responsible for conducting investigations.
5. Make findings of fact and recommendations – depending on the scope of the investigation
The investigator must understand from the outset whether he or she is just making findings of fact or is being asked to make recommendations based on the findings. Sometimes a company only wants an investigator to find facts and it will decide the appropriate action to be taken. Therefore, the investigator should understand exactly what he or she is being asked to do. Finally, the investigator’s findings are often captured in a report that is given to select company senior management for review and consideration.
The MCAD investigation training highlights the complexity involved in conducting investigations that requires thoughtful analysis. It is well worth taking the time to work through these issues since investigations do not just have, potentially, a legal impact on the company, but set the tone among the workforce as to how the company addresses concerns raised in the workplace.
This MCAD program is held in Boston and takes place once a year. Read more about it here.