We Probably Don't Need an Investigation, Right?

A complaint has happened, and now you and your colleagues have to figure out how to re-establish order in the workplace. Maybe it was a sexual harassment claim, an instance of racial discrimination, or some allegation of wrongdoing. Maybe it has even caused significant buzz on social media. Regardless, you have an HR department to handle this, and thorough documentation of the event. Surely you don’t need to launch a full investigation, right??

It may be legally required.

Almost certainly (at least in these examples), an investigation is exactly what is needed … even required. It can be legally mandatory, like in instances of discrimination or harassment. For the last three decades, the EEOC has demanded that “when an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation.”¹

You need to prove you’re running a safe workplace.

And not to put the cart before the horse, but sometimes an investigation can retroactively be decided to have been required. Confusing? Let’s look at some examples:

• At least in Colorado, for some defenses, you must prove that you made “good faith efforts” as employer to prevent discrimination in the workplace.² An excellent way to prove you’ve been doing this the whole time is to be able to demonstrate that you also investigated allegations of discrimination when they arose.
• If you terminated an employee for misconduct, but didn’t investigate (at all, or even just thoroughly enough) before reaching the decision to terminate, you might be subject to damages for unlawful discharge³ later on down the line.

In short, probably the best way to prevent any of these consequences from coming back to bite you after a situation has already been “resolved” is by being careful and having a thorough investigation up-front!

Threats to physical safety will also probably trigger an investigation.

If your employees express the opinion that you run a dangerous workplace due to violence or other unsafe conditions, you probably need to hold an investigation … not only to ensure that your workplace is ACTUALLY safe, but also to protect yourself from liability. Under the Occupational Health and Safety Act of 1970, employers must provide a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm.”⁴ Similarly, threatened violence in the workplace is almost guaranteed to necessitate an investigation. You may also need to investigate any claims of financial fraud or drug use in the workplace for similar reasons.

If it’s not illegal, does it really need to be investigated? Maybe.

Did you promise to do something about it if this specific situation happened? Or has it happened before, and you investigated? Even if the incident that occurred wasn’t illegal, if you set a precedent or expectation that there would be an investigation then didn’t hold one, you could wind up in trouble.

Be a good boss by protecting your organization.

While it may seem more obvious that “acting in your organization’s best interest” means covering things up, or assuming the best of your staff when accusations are raised, this simply isn’t the case. For anyone who’s been watching the news, failure to treat situations (especially the alleged victims of said situations) properly is increasingly likely to create a social media storm far worse than any investigation’s findings.

Sometimes, you just should.

Scared of liability or the risk of punitive damages? One of the best things you can do to protect your organization (and yourself) is to show that you took “good faith efforts” to enforce your anti-discrimination and anti-harassment policies. (Don’t have policies set up yet? That’s also a good step to take for protection  … talk to your legal counsel to get that important ball rolling soon!) One way to enforce your policy is by—you guessed it—having an investigation if allegations arise. The last thing you want is for a court to find that “failure to fully investigate a complaint supports a finding that [your] response [to the alleged harassment] was inadequate.”⁵

Finally, creating a culture of trust, accountability, and safety is one of the best things you can do for your employees and their peace of mind. If staff knows that their employers are willing to take the initiative to protect them from harm and to take allegations seriously, it can do a lot for employee retention, loyalty to the company, and simply feeling safer and more confident at work. So, in short: be kind to your employees, and investigate when you should.

Disclaimer: this is not an exhaustive list of reasons to have an investigation. When in doubt, ask legal counsel.

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¹ EEOC Policy Guidance on Current Issue of Sexual Harassment (March 19, 1990), available at https://www.eeoc.gov/laws/guidance/policy-guidance-current-issues-sexual-harassment

² Colorado’s Anti-Discrimination Act (CADA)

³ Crenshaw v. Bozeman Deaconess Hosp., 693 P.2d 487 (Mont. 1984)

⁴ The Occupational Health and Safety Act of 1970, 29 U.S.C. § 654(a)(1).

⁵ Id. at 750 (quoting Wilson v. Tulsa Junior Coll., 164 F.3d 534, 543 n. 7 (10th Cir. 1998))

Featured Image by Rebecca Sidebotham.