Most employers know that an investigation needs to be conducted whenever the employer knows or suspects harassment or discrimination is occurring or has occurred in its workplace. Although a lot has been written by others offering tips and guidelines on how to conduct an effective investigation, less has been written about an equally important issue: that is, who should conduct the investigation.
Handling complaints of harassment and discrimination is difficult for any business, and in all instances, the investigator should be a qualified and disinterested person. This person could be you (the “you” being a founder or manager in a startup or small business) or a human resources representative, but only so long as neither person is the one who has been accused of harassment, is not close friends with the person making the complaint, the harasser, or any of the witnesses, or has some other conflict or bias relating to those involved or the complaint.
Sometimes, though, the complaint is especially sensitive, and special measures should be taken. By sensitive, I mean that the identity of the complainant, the identity of the accused, the nature and sensitivity of the allegations, the volume of complaints, the number of employees involved, the potential financial exposure, or the potential publicity present more of a high-stakes scenario for the employer. These types of cases warrant the hiring of an outside, independent investigator to conduct the investigation.
Why? Unlike you, another company employee or the company’s regular legal counsel, an independent investigator has no formal ties to the organization, and is therefore, objective and neutral in a way that a person with ties to the organization or situation could never be. This is important because in harassment lawsuits, a successful defense often turns on the adequacy of the investigation, and the last thing any organization wants in a high-stakes scenario is for the investigation to be considered a sham by virtue of who conducted the investigation.
So where do you find an independent investigator? Employment lawyers, human resources/workplace consultants, and investigation firms usually offer investigative services, but choose carefully, and make sure that the investigator is qualified and experienced.
One final tip: Keep in mind that while your organization’s regular legal counsel may play a role in selecting or recommending an independent investigator, if you will want your regular legal counsel to defend your organization in the event of a lawsuit, then your regular legal counsel should not serve as the investigator. As noted above, a successful defense often turns on the adequacy of the investigation, which, in turn, puts the investigation at issue in a lawsuit. If the investigation is at issue and your regular legal counsel is the investigator, then they will be conflicted out of representing your organization because they will be witnesses in the litigation.