Although there should certainly be some consistency in your pursuit of any workplace investigation (see our earlier articles What is a Workplace Investigation? and The Anatomy of a Workplace Investigation for some general information and guidelines), the investigation of discrimination complaints requires sensitivity to some special considerations that will not always apply to other complaints. The purpose of this article is to outline some of those considerations and encourage you to become knowledgeable of the unique challenges that discrimination investigations present.
Although LSC understands that its clients want their workplaces to perform much better than just not illegally, it is important to understand the legal theory or theories that would apply to a situation under investigation. If the reporting employee were to pursue legal channels regarding their experience of discrimination in your workplace, on what grounds might their complaint find legal traction? Use that legal theory to help plan your investigative effort. There are three common legal theories that may apply to a workplace complaint: (1) disparate treatment, (2) disparate impact, and (3) hostile work environment.
- Disparate treatment requires the complaining parties to demonstrate (by presenting direct or circumstantial evidence) that they have been intentionally subjected to less favorable treatment because of their protected status (e.g. race, color, religion, sex, national origin, age, or disability). The key burden for the complainant is to show that the treatment was motivated by “discriminatory intent.” For example, a manager who makes staffing decisions based on whether or not an employee has a physical handicap is acting intentionally discriminatory based on employee disabilities.
- Disparate impact occurs when a neutral policy has an adverse (discriminatory) effect on members of a protected class. Such cases commonly occur in selection settings (e.g. hiring, promotion). Disparate (or adverse) impact is typically demonstrated through the use of statistics. Disparate impact is not illegal, however, if the employer can articulate a legitimate justification for the policy that is consistent with business necessity. A classic example of adverse impact involves testing procedures used to make hiring decisions. Cognitive ability tests have been shown to consistently produce adverse impact across racial groups. An organization using such a test must demonstrate that it is predictive of important work outcomes (e.g. job performance).
- Hostile work environment is a form of discriminatory harassment. In order to prove unlawful hostile work environment harassment, the complaining employee must show that “the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” The law also protects employees from retaliation for filing such a complaint. A court will be interested in the full history of the complaint, so your investigation will become critical evidence. Details such as the nature of the harassing behaviors and the context within which such behaviors occurred should be established and documented. You will be found liable if the court determines that managers knew or should have known that the harassment was taking place and “failed to take prompt and appropriate corrective action.”2 Therefore, it is not enough to simply investigate; if the allegations are founded, you must take prompt and appropriate action to rectify the problems.
Understand how a discrimination lawsuit unfolds. For example, disparate treatment discrimination complaints are subject to a burden-shifting framework. The burden of proof first resides with the complaining party (the plaintiff) to establish a prima facie case of discrimination, which requires the plaintiff to prove that (1) he/she is or is perceived to be a member of a protected class, (2) an adverse action took place, (3) there is a relationship between his/her protected class and the adverse action, and (4) he/she was treated differently than someone who is similarly situated. If the plaintiff’s prima facie case is accepted by the court, the burden shifts to the employer (the defendant) to provide a legitimate, non-discriminatory explanation for the adverse action in order to counter the prima facie evidence. If the defendant meets this burden, in order for the plaintiff to prevail, he/she must provide evidence that the defendant’s proffered explanation is, in fact, pretext for illegal discrimination.
Investigate properly. Your goal should be to understand the full scope of the problem, which requires asking the right questions in the right way. Build a witness list by snowballing—ask each witness you interview if there is anyone else who can provide information relevant to the issues under investigation. Do not, however, simply interview staff because they may be able to provide so-called character evidence. Ask open-ended, non-leading questions that are not based on assumptions you have made about the involved parties or incidents. Be mindful that as you develop information, you may have to re-interview witnesses along the way. Consider other investigative techniques that may be revealing such as documentation, written communications, collected data, etc.
After concluding your investigation, re-evaluate the evidence in light of the guiding legal theory. For a disparate treatment claim, has a prima facie case been established? Do you have a legitimate, non-discriminatory justification for the workplace action? Can the complaining party demonstrate pretext? Alternatively, if you are investigating hostile work environment harassment, do you fully appreciate the pervasiveness of the harassing behaviors? Did you promptly investigate and take the necessary corrective action? You can see that the guiding legal theory will require a different evaluation of the investigative findings.
Clearly, understanding the legal theory is essential to planning and guiding your investigative effort so that you know what questions must be asked, know which individuals must be interviewed, and are prepared to offer an appropriate resolution to the problem in the event that the complaint has merit. Keep these special legal considerations in mind as you encounter your own complaints of discrimination, and consult with local counsel regarding your jurisdictions’ application of these standards.
Natalie Lynch can provide the expertise you need to appropriately address complaints of workplace discrimination. Reach out to LSC to discuss discrimination investigations today.
Cite this article: Lee, L. M. (2016). Investigating discrimination complaints: Some special considerations. Retrieved From: http://lynchsc.com/insights/discrimination-complaints/investigating-discrimination-complaints/
 U.S. Equal Employment Opportunity Commission. (1999). Enforcement guidance on vicarious employer liability for unlawful harassment by supervisors. Retrieved from https://www.eeoc.gov/policy/docs/harassment.html
 U.S. Equal Employment Opportunity Commission. (n.d.). Harassment. Retrieved from https://www.eeoc.gov/laws/types/harassment.cfm