Employers and unions use this process to settle grievances under the manage-
ment–union contract. Most disciplinary arbitrations focus not upon the methods
of investigation, but upon whether the company met the necessary standard of
proof. Nonetheless, these decisions may affect how workplace investigations are conducted. An arbitrator, for example, may influence an investigative method by finding a company did not have sufficient evidence, based upon a single documented incident of property removal, to prove the employee stole rather than borrowed
the equipment. As a result, company investigators may alter their investigations to include multiple observations of property removal in order to meet the standard of proof established by the arbitrator. Where applicable, company investigators should take time to review past arbitration decisions for guidance on acceptable practices and burdens of proof.
7.6.7 Civil Rights Law
A number of federal laws prohibit various forms of workplace discrimination and harassment. The major act is the Civil Rights Act of 1964 (often referred to as Title VII).36 It prohibits employers from engaging in unlawful employment practices relating to hiring, firing, promoting, and altering the terms and conditions of employment because of race, color, religion, sex, or national origin. It also
222 ◾ Investigative Interviewing
vested enforcement authority in the Equal Employment Opportunity Commission
(EEOC), but did not preempt state law. Other important federal laws include:
The Civil Rights Act of 1866
Age Discrimination Employment Act
Equal Employment Opportunity Act
Rehabilitation Act
Pregnancy Discrimination Act
Americans with Disabilities Act
Civil Rights Act of 1991
Collectively these laws prohibit other forms of discrimination and harassment,
strengthen the enforcement authority of the EEOC, and authorize compensatory
and punitive damages, and attorney’s fees in certain instances. In addition to the federal laws, all 50 states and many local authorities have similar antidiscrimination laws, and some of these laws may include other categories of protected persons.
At the fact-finding stage of an investigation, the major impact of civil rights laws that prohibit employment discrimination and harassment is twofold upon
workplace investigations. First, as explained, the practical effect of the civil rights laws is that employers should generally investigate all employee allegations of discrimination and harassment. Second, fact finders must be careful not to engage in or use discriminatory methods of investigation.
7.6.7.1 Duty to Investigate
EEOC guidelines provide that employers should “investigate promptly and thor-
oughly” all credible allegations of sexual harassment.37 This statement balances and puts equal value on two competing criteria that employers should consider for all discrimination and harassment investigations. It does not permit an employer to sacrifice timeliness for thoroughness, nor to sacrifice thoroughness for timeliness.
Instead, the burden is on an employer to initiate the investigation in a timely manner and to keep it moving forward to a timely conclusion. But, the conclusion
must be based on a reasonably thorough investigation into the facts. This normally includes interviewing the complainant, witnesses, and alleged harasser, and reviewing other relevant documents and available evidence. It also may include identifying other complainants or witnesses who have not stepped forward. More complex
allegations and number of persons involved, variations in work schedules, and other factors will, in part, determine the length of an investigation.
For example, in Fuller, the U.S. Court of Appeals found that an employer’s investigation of a sexual harassment complaint was seriously deficient in several respects. The employer failed to timely interview the harasser, giving him time to prepare his defense, and the investigator often accepted the harasser’s side of the issue without taking reasonable steps to confirm, including failing to check
Legal Challenges and Litigation Avoidance ◾ 223
telephone records available to him. The employer disregarded evidence in support of the complainant, and failed to interview a key witness in favor of the complainant.
Similarly, in Valdez, the court was critical of the “remarkably shoddy” internal company investigation. The company received an anonymous EEOC complaint of
sexual harassment by “top management” at one of its stores. The personnel man-
ager who received the complaint assigned it to the zone manager who himself had a questionable history involving alleged sexual harassment. He, in turn, assigned the investigation to the manager of the store where the harassment had allegedly occurred. In the analogy of plaintiff’s counsel, it was as if the fox was guarding the hen house. The store manager never contacted the law firm representing the
complainant and named on the EEOC complaint for more details; when he inter-
viewed employees, he asked only about the conduct of his assistant manager; and he never allowed the assistant manager to respond to the allegations in writing. The assistant manager was terminated within two days of the start of the investigation.
The assistant manager, who was a Salvadorian, filed a national origin discrimination complaint. Although the case facts were very complex, the U.S. District Court sharply criticized the shoddiness of the employer’s investigation. It disapproved of the decision to assign the investigation to the zone manager who had a questionable history and, as it came out in trial, who also had stated on two occasions a desire to fire the plaintiff because there were too many “wetbacks” working for the company.
It also doubted the selection of the store manager, who was a prime subject himself, to conduct the investigation. It wondered about the manager’s thoroughness and
objectivity for focusing only on the assistant manager and failing to gather more facts. And, it criticized the company for terminating the assistant manager when he didn’t even work at the store at the same time the complainant worked there.
The court found the company had discriminated against the manager when it ter-
minated him.
As a final comment, an important consideration for employers is that a prompt
and thorough investigation of a harassment complaint, accompanied by appropri-
ate and timely remedial action, can provide the employer an affirmative defense in subsequent litigation. But note, the issue of whether temporary remedial measures need to be taken before or during the investigation is a separate issue. Depending on the severity of the allegations, sensitivities of the parties, and level of immediate supervision, an employer may need to take temporary measures before an investigation is completed.
7.6.7.2 Discriminatory Practices
Discriminatory investigative practices include those that are discriminatory on their face and those that are neutral on their face while discriminatory in impact.
For example, it would be discriminatory practice on its face for a company to check for criminal histories of only minority job applicants. Similarly, all factors being the same, it would be a discriminatory practice for a company to interview only white
224 ◾ Investigative Interviewing
males and not minority employees who had access to stolen company property. But, this does not mean everyone has to be interviewed if there is legitimate evidence for interviewing some and not others. Similarly, if, as part of an internal investigation, an employer searched only the purses of women employees and not the briefcases
of male employees, this may be a discriminatory investigative practice unless there was a legitimate reason for such a search pattern. The simple fact of the matter is that investigative methods should not on their face be discriminatory.
Other investigative practices may be neutral (nondiscriminatory) on their face, but may have a dis
criminatory impact. A workplace investigation procedure that is neutral on its face might include something so simple as interviewing only hourly employees and not management staff who had access to missing property or areas
where subjected illegal drugs were found. The distinction between hourly employees and salaried managers is not discriminatory on its face. But, hypothetically, what if all the managers were white males and all the hourly employees were female minorities? Further, assume the investigation was inconclusive and the company
elected to terminate all the hourly employees. If a complaint was filed and the employer (and his fact finder) could not articulate a legitimate reason for interviewing only minority hourly employees, the underlying investigation and subse-
quent adverse employment action might be vulnerable to claims of discrimination.
Investigators need to remain sensitive to the potential for engaging in direct and indirect discriminatory investigative practices.
Tip: Fact finders need to be sensitive to the totality of the investigative environment as not to be influenced by or to engage in practices that are discriminatory on their face or impact, including bias remarks, selection of subjects, and investigative reporting.
7.6.8 Select Federal Statutes
The following statutes have been discussed elsewhere in this text. The purpose here is to provide a brief foundation in each and to highlight their relevancy to fact finders.
7.6.8.1 Employee Polygraph Protection Act
The Employee Polygraph Protection Act (EPPA) prohibits private sector employers from administering polygraph examinations, creates limited exemptions where it
may be used, and sets forth very specific rights of employees who refuse or agree to take the test.38 Specifically, it is illegal under the act for a private employer to
“require, request, suggest, or cause any employee … to take or submit to any lie detector test,” or to “discharge, discipline, discriminate against in any manner …
or threaten to take any such action” against any employee who “refuses, declines,
Legal Challenges and Litigation Avoidance ◾ 225
or fails to take or submit to any lie detector test.” Thereafter, it creates a few specialized exceptions for businesses dealing with national security, pharmaceuticals, and protection of key public facilities. It also permits private employers to use the polygraph for “ongoing investigations involving economic loss to the employer,”
where the employee had access to the missing assets and the employer has other
“reasonable suspicion” that the employee was involved. The act also places certain conditions upon employers and details rights of the employee, including the right to refuse and withdraw permission, notification of the specific grounds for reasonable suspicion, and other rights.
For example, in Wiltshire, the defendant bank conducted an extensive investigation into the unauthorized wire transfer of $1.5 million.39 It recovered the funds only because another bank intercepted the transfer when it became suspicious. But, the defendant bank had to pay a few thousand dollars in administrative fees for the transaction. Based on information provided by the FBI, access to funds, use of an outdated time stamp, and knowledge of fund transfer protocol, the bank narrowed its investigation to a manager, the plaintiff. During employee interviews, the manager was the only subject who stated it was necessary to put a date stamp on a debit transfer. The bank asked the manager to take a polygraph. Per the statute, he was allowed 48 hours to decline and he did so on the second day. Approximately two weeks later, based on existing information, the bank terminated his employment for lack of confidence in his ability to protect bank assets. He claimed his termination was based on his refusal to take the polygraph, and he filed suit for violation of the EPPA. The bank countered that he was fired based on the information it had and not his refusal to take the polygraph. The court, per the statute, found it was an ongoing investigation, he had access, and there was economic loss (the loss of use of funds for a few days and the fee). Further, the court concluded the bank had reasonable suspicion to request that the manager take the polygraph test. But, the court found the notice provided the manager was deficient because it didn’t adequately describe with “particularity”
the bank’s basis for its suspicion. The notice for reasonable suspicion stated: “You were present on December 7, 1990, when the wire transfer was sent. You had access to all necessary documents and stamps to create item and place it in basket for transmission.” The bank argued that there was sufficient particularity and notice principally based upon the multiple interviews that it had had with the plaintiff.
The Supreme Court of New York County, New York, disagreed and held the
verbal notice was insufficient because Congress was specific that the reasonable suspicion notice must be set forth in writing. Because the bank failed to comply fully with the notice requirement, the court found the bank violated the EPPA when it requested the plaintiff to take the polygraph. Addressing the issue of his termination, the court added: “Citibank’s suspension and termination of plaintiff were barred by EPPA §3 (29 U.S.C. § 2002[3]) unless Citibank can prove at trial that plaintiff’s failure to take the polygraph test played no part in the decision either to suspend or fire him.” The court denied the bank’s motion for summary judgment.
226 ◾ Investigative Interviewing
In another interesting case, Lyle, the U.S. District Court held the defendant hospital did not qualify for the ongoing investigation exemption for economic
loss.40 The hospital vice president who was investigating the theft of funds from a doctor’s locker asked the plaintiff, a technician in the surgical area where the theft occurred, to take a polygraph. He refused and subsequently was terminated. He
sued for violation of the EPPA. The hospital filed for summary judgment on the
grounds it qualified for the ongoing investigation exemption. The court held it did not because the doctor, not the hospital, had suffered economic loss. In addition to the federal statute, employers and fact finders need to recognize that many states have laws that restrict the use of polygraphs as well.41
7.6.8.2 Fair Credit Reporting Act
The Fair Credit Reporting Act was enacted by Congress to place reasonable procedural controls on Consumer Reporting Agencies (CRAs) that balance the needs of
commerce for fast and reliable consumer information regarding a consumer’s credit worthiness and character versus the rights of individual consumers to accuracy and confidentiality.42 A CRA refers to a person or business that engages in the “practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.” It is important to note that a public agency, such as a police department or court that keeps public records, is not a CRA.
There are two types of consumer reports: a consumer report and an investiga-
tive consumer report. A consumer report pertains to a person’s “credit worthiness, character, general reputation, personal characteristics, or mode of living … which is used or expected to be used in establishing the consumer’s eligibility for [among other things], employment purposes.” An investigative consumer report expands this information to include “personal interviews with neighbors, friends, or associates …
or who may have knowledge concerning any such items of information.” The term
employment purposes means “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment, or retention as an employee.”
In order to obtain and use information from a CRA for employment purposes,
an employer must give notice to the consumer, obtain the consumer’s written permission, and verify this information to the reporting agency. If it is an investigative consumer report, the employer must also identify it as such, provide an explanation why the information is sought, and give notice that the consumer may submit a
r
equest for a complete disclosure about the nature of the investigation and its methods. If an employer takes adverse action based on a consumer report, the employer has further duties prior to the action including providing the consumer with a copy of the report and a document that again outlines his or her rights. After the adverse action, there are further notification requirements placed upon an employer. Of interest here, the Fair Credit Reporting Act (FCRA), as amended in 2003, excludes certain communications between a CRA and employer regarding investigations
Legal Challenges and Litigation Avoidance ◾ 227
into employee misconduct, breaches of written policy, and compliance with regulations, and rules of self-regulated organizations. If adverse action is taken upon the communication there is a duty to provide a summary of the “nature and substance”
of the report. It is essential that employers and CRAs abide by the FCRA.
7.6.8.3 Federal Sentencing Guidelines
In order to reduce the disparity of sentences defendants received for similar offenses by the federal courts, the Federal Sentencing Commission was established to provide uniform guidelines.43 Of interest here, the Federal Sentencing Guidelines
provide guidance on how the culpability score of a convicted organization (e.g., business) is to be calculated. The higher the culpability score, the greater the severity of the financial penalty assessed against the organization. The score is increased if “high-level personnel … participated in, condoned, or were willfully ignorant of the offense.” Further, it may be increased if the organization has a prior history of similar offenses, it violated a court order, or it obstructed the government investigation. An organization may lower its culpability score if it has an “Effective Program to Prevent and Detect Violations of Law.” The score also may be lowered if the
organization self-disclosed the offense, cooperated in the government investigation, and accepted responsibility.
Investigative Interviewing: Psychology, Method and Practice Page 34