By their nature, harassment or discrimination claims can pose serious risks to an organization if not handled properly. Imagine this scenario . . . Last month your company terminated an employee. Now you're being sued for race discrimination and the former employee is claiming she was treated unfairly by the Human Resources Manager. You also learn that there are rumors about that other employees are expressing concerns about unfair treatment within your company. You begin to wonder about the company's liability and any adverse publicity which might arise. Whom should you ask to investigate these claims?
Handling complaints of harassment or discrimination, whether based on sex, race or other protected categories, can be difficult for any business. When the complaint is especially sensitive, special measures are required. One way to address these potentially volatile situations is through the use of an independent investigator.
What is an independent investigator and why use one? An independent investigator is someone retained by the company to investigate and report on allegations of discrimination or harassment in the workplace. Unlike the human resources director, corporate officer, or regular legal counsel, the independent investigator has no formal ties to the organization. Ideally, this person is someone who is 1) knowledgeable about discrimination laws, 2) has had prior experience handling investigations, 3) discreet, 4) credible, and 5) able to provide a thorough, objective assessment of the situation. The use of an independent investigator can be a valuable tool in evaluating claims, assessing exposure, determining appropriate actions, and, in certain cases, minimizing liability.
Not every complaint of harassment or discrimination warrants the hiring of an independent investigator. However, there are certain situations in which an independent investigator should be given serious consideration:
Allegations of serious misconduct by high-level corporate officers
Particularly sensitive or egregious complaints
Multiple complaints involving numerous employees
Exposure to significant financial liability
Exposure to unwanted, adverse publicity
The primary benefit of an independent investigation is objectivity. Too often, allegations of harassment involve conflicting testimony from persons with obvious ties to the situation. When the complaint involves a high-level corporate officer, or when allegations of widespread misconduct are involved, it is often difficult for internal investigators to maintain the level of objectivity required. "I know John. He would never do such a thing!" "That could never happen here!" Unlike corporate insiders, the independent investigator has no preconceptions about interested parties. She has no built-in biases or predilections to give undue weight to one side or the other. The investigator is neutral.
A second benefit is credibility. In harassment lawsuits, a successful defense often turns on the adequacy of the investigation. Was the investigator neutral? Was the investigation thorough, or a mere sham? It is critical that the company base its response on an investigation which was conducted in good faith and which provides a true picture of events. The qualifications and credibility of the investigator are pivotal in the defense. Caution: Although the company's general or litigation counsel may play a pivotal role in the selection of the investigator, the investigator should not be the person who would represent the employer in the event a lawsuit is filed, since the investigator might be called as a witness in the lawsuit. In addition, the company's regular lawyer is not likely to be perceived by others as "independent."
The credibility of the investigator is also important for internal audiences. A sensitive investigation must be "fair." Members of the workforce, including interested parties, are watching closely to gauge the firm's response. Corporate officers and directors may be required to make tough choices based on the results of the investigation. It is important to all concerned that the investigation was conducted by someone whose qualifications and credibility will enhance and not detract from the validity of the investigation.
There are other compelling reasons why a company might choose to utilize an outside investigator. Investigations, especially those involving numerous complaints or numerous witnesses, can be very time-consuming. If the company is small, or if the internal investigator has other responsibilities, a protracted investigation can be disruptive to the company's business. This is especially true in "tip of the iceberg" cases, where a preliminary investigation suggests that there may be other similar acts of misconduct that simply had not been reported. In addition, in situations involving sensitive subject matter, whether of a sexual or racial nature, witnesses may be more comfortable talking to someone not directly associated with the company or its officers. An independent investigator may promote open and honest discussion and keep the company from being "blindsided" at a later date by negative information from witnesses who did not feel comfortable confiding in the company's internal investigator or litigation counsel.
When a harassment or discrimination claim poses serious risk to your organization, an outside or independent investigator can help minimize that risk. If you decide to use an independent investigator, choose with care.
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Valerie P. Simmons is a partner in the Grand Rapids office of Warner Norcross & Judd LLP. She specializes in civil litigation and health law. Valerie may be reached at the Grand Rapids office at 616.752.2163. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.