Employers must take remedial and preventive action to stop discrimination, harassment, and retaliation at work. To fulfill this obligation, internal human resources professionals and employment lawyers should understand how to effectively conduct investigations of employee complaints in this area.

Of course, the facts underlying workplace complaints are not always easy to determine. Investigators frequently are faced with conflicting versions of events, particularly when there are no witnesses to the alleged conduct.

Evaluating Credibility

Investigators may resolve factual disputes by evaluating credibility factors to assess which witness account(s) is or are the most reliable. No one factor is determinative. The examples below are not exhaustive.  

Inherent Plausibility. An investigator will consider if a witness’ account of events appears unlikely. Although investigators must remember that “implausible” does not necessarily mean “impossible,” investigators will take into account the reasonable likelihood that the events happened.

Opportunity and Capacity to Hear or Observe. Similar to the plausibility factor, investigators should consider whether a witness actually was able to hear or see the conduct the witness described. Further, a witness who embellishes based on what he or she claims to have witnessed, or who relates second-hand information as fact, may undermine his or her own credibility.

Motive to Lie. Employees under investigation may naturally have a motive to lie to protect themselves. However, a complainant may also have a motive to lie. For example, an employee facing discharge might fabricate allegations about his supervisor to forestall disciplinary action. In determining credibility, the investigator will consider the complaint’s timing. Previous disciplinary action taken against the complainant may also be relevant.

Consistent/Inconsistent Statements. Witnesses who change their statements over time or give statements that are inconsistent with other witness statements may lose credibility. Conversely, witnesses who give consistent statements are deemed more credible. At the same time, investigators may consider factors that might make it difficult for witnesses to accurately remember events. An employee who has experienced trauma in the past, for example, may find it difficult to recount events that triggered that trauma.

History of Conduct. An investigator may consider an accused employee’s history of conduct in evaluating credibility. Information about an employee’s history may be found in personnel records or gleaned from other witnesses. While the employee’s history is not conclusive in and of itself, it aids the investigator in determining whether the alleged conduct could have reasonably occurred given the employee’s previous actions.

Corroboration or Lack Thereof. An investigator may find information that corroborates a witness’ account. Electronic data may corroborate a claimed communication, for example. A remark to a co-worker shortly after an incident also may be evidence of corroboration. A lack of corroborating evidence also may be significant.

Reputation for Honesty and Deceit. Investigators may rely on information about an employee’s reputation for honesty or deceit as a factor in assessing credibility. Being more subjective than others, this factor can be tricky, however, and should not be used as a substitute for actual fact finding.

Weighing Credibility Factors

In most cases, investigators evaluate a number of the factors listed above to determine witness credibility. Rarely will every credibility factor apply in an investigation. In fact, in some singular cases, investigators can rely on a single credibility factor, such as corroboration, in making findings.

In making factual findings, most investigators list the allegations at issue and what each witness said about the allegation. They then apply all relevant credibility factors to the witnesses and determine which witnesses are more credible. By doing so, the investigator can determine where the weight of the evidence lies and make the appropriate factual finding.

Evidentiary Standard

An employer’s internal investigation of alleged misconduct, including discrimination or harassment, does not involve the same evidentiary standards as a trial. However, the quality of an investigation may be scrutinized if there is a legal proceeding challenging an employment decision that involves an investigation. For example, the alleged wrongdoer may claim the investigator’s conclusion was based on insufficient evidence or poorly supported conclusions. Complainants, too, may challenge findings. A finding that misconduct did not occur may be the subject of litigation, particularly if the complainant alleges the wrongdoer repeated the misconduct after the initial investigation.

The employer has broad latitude to discipline or discharge an accused wrongdoer who is employed “at will.” Little to no “evidence” of wrongdoing is required. On the other hand, employers must take greater care when the right to discipline or discharge is limited by an employment contract, collective bargaining agreement, or civil service rules.

As a matter of good practice, investigators should find facts based on a “preponderance” standard, i.e., that it is “more likely than not” that a fact is true. A fact-finder will apply the same standard at trial or arbitration. The investigator justifies each factual finding based on reasonable conclusions, including witness accounts, documents or other evidence, and credibility.

Conclusion

Investigating workplace complaints is not always easy. Yet, it is in the best interest of employers and their employees to commit to the investigative process in order to stop the alleged discrimination, harassment, or retaliation in the workplace. Without remedial action being taken to correct the underlying complaint, unlawful conduct may continue to occur leading to further potential injury, claims, and liability.

The investigator’s role is critical in weighing the credibility factors especially in cases where the evidence is seemingly inconclusive. A diligent investigator will provide a report that clearly documents their findings based on a thorough examination of the available evidence and an explanation of the weight given to credibility factors. This type of report can help resolve cases where there are conflicting accounts of the alleged misconduct.