March 2014 Bar Bulletin
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March 2014 Bar Bulletin

Investigating Gender Discrimination and Other Workplace Complaints

By Karen Sutherland

 

Enforcing gender equality sometimes requires workplace investigations into allegations of discrimination or harassment. Done correctly, an investigation can provide a defense to a hostile work environment claim.1 This article briefly summarizes some of the common mistakes made in workplace investigations and how to avoid them.

Jumping in without a plan. Before beginning the investigation, the investigator should meet with the employer and determine what the employer's expectations are, the scope of the investigation, how it will be conducted, and the timeline, deliverables and estimated cost.

Delay in beginning the investigation. Memories fade, evidence disappears, witnesses talk to each other about the facts, employees quit or become unwilling to participate, and contractual deadlines for taking action may pass. The sooner the investigation can begin, the less likely these issues are to arise.

Failing to preserve evidence. Before notifying witnesses or the subject of the investigation, the employer should take steps to preserve evidence so that it is not intentionally destroyed or inadvertently deleted. This is especially true for emails, texts, web browser histories, metadata and other electronic information, and audio or visual recordings from devices such as security cameras.

Assignment scope creep. Once the investigation starts, other issues may come to light that are beyond the agreed-upon scope of the investigation. Any expansion in scope should be agreed to by the employer so that there are no surprises. For example, the employer may want to have someone else investigate the other issues.

Lack of clarity on what standards to apply. Does the employer have a policy or procedure that is different from local, state or federal law? If so, does the employer want you to apply the employer's policy or procedure instead of or in addition to applicable law? If the employer wants the investigator to apply a legal standard, which one? Local, state and federal standards are not necessarily identical.

Lack of clarity on the burden of proof and quantum of proof. In civil litigation, the burden of proof is on the employee and the quantum of proof is preponderance of the evidence, with various refinements such as the substantial factor test for disparate treatment.2

In labor arbitrations, if the employer disciplined the employee, the burden of proof in a grievance hearing is on the employer and the quantum of proof may be preponderance of the evidence, clear and convincing evidence or beyond a reasonable doubt.3 If the investigator is tasked with making findings, what standard should be applied? Should the standard be described in the report?


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