Should you conduct your own workplace harassment or discrimination investigations?

When allegations of discrimination or harassment surface in the workplace, many employers understandably feel compelled to handle it themselves. After all, who knows the company and workplace better than the people who manage it? While this impulse is natural, it can expose employers, especially smaller organizations without dedicated human resources teams, to a host of legal and practical pitfalls that can make the situation worse, not better.

At its core, investigating a complaint of workplace discrimination or harassment isn’t simply a matter of asking a few questions and documenting answers. Federal guidance makes clear that an employer’s investigation must be both prompt and adequate, meaning it must happen quickly after notice of an issue and be sufficiently thorough to “arrive at a reasonably fair estimate of truth.”¹ An investigation that fails to meet these standards can itself become evidence of employer negligence in a U.S. Equal Employment Opportunity Commission (EEOC) claim.

By way of example, the EEOC cites the following cases² to demonstrate how inadequate workplace investigations can lead employers to greater liability for their employees claims of harassment or discrimination:

• EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 465-66 (5th Cir. 2013) (en banc) (holding that a reasonable jury could conclude that the employer failed to take reasonable measures to prevent and correct harassment where, among other things, the harassment complaint resulted in a belated and cursory 20-minute investigation in which the investigator did not take any notes or ask any questions during his meeting with the complainant, and he never contacted the employer’s EEO Officer or sought advice about how to handle the matter).
• Lightbody v. Wal-Mart Stores E., L.P., No. 13-cv-10984, 2014 WL 5313873, at *5 (D. Mass. Oct. 17, 2014) (concluding that a reasonable jury could find that the employer was liable for sexual harassment of the plaintiff because, in investigating the plaintiff’s complaint, it failed to follow leads that bore on the alleged harasser’s credibility)
• Grimmett v. Ala. Dep’t of Corr., No. CV-11-BE-3594-S, 2013 WL 3242751, at *13 (N.D. Ala. June 25, 2013) (concluding that the employer failed to show that it exercised reasonable care where it presented general evidence that it had initiated an investigation but no specific evidence that would enable the court to evaluate the adequacy of the investigation and the employer’s conclusory finding that the harassment complaint was unfounded)

One of the fundamental hurdles for employers conducting their own investigations is the lack of specialized training in EEO law and fact-finding techniques. The EEOC has repeatedly emphasized that whoever conducts an investigation should be well-trained in interviewing witnesses and evaluating credibility.³ These are skills that most managers, supervisors, or small business owners simply do not possess. An investigator without the necessary experience may miss critical information, ask improper questions, or fail to assess conflicting accounts in a legally defensible way.

Employers can sometimes be to be too close to a dispute to investigate fairly and appropriately. When a manager is well-acquainted with the parties involved, or when a co-worker friend is asked to “look into it,” neutrality can be compromised, potentially undermining the investigation and exposing the employer to claims that the process was biased or inadequate. EEOC guidance explicitly warns against having someone with a personal stake or insufficient independence lead the fact-finding process.

For smaller employers without HR departments, these problems can be even more acute. Too often, overwhelmed owners or supervisors simply don’t have the time to conduct interviews, review documentation, and craft comprehensive findings while trying to keep normal business operations running. Worse, without a firm grasp of what constitutes unlawful discrimination under federal and state law, well-intentioned employers can make substantive mistakes that inadvertently create liability. For example, misclassifying conduct as non-actionable because it “seems harmless” can later be interpreted in litigation as a failure to recognize legally protected characteristics or hostile work environment standards.

Finally, any mishandled workplace investigation raises the specter of a potential retaliation claim. Even the act of investigating can trigger allegations of unlawful retaliation if employees feel they were treated unfairly during the process. An experienced external investigator or employment law firm can help ensure that interviews are conducted in a way that minimizes this risk and that appropriate interim protections are in place.

This is where many employers run into trouble. Well-meaning managers may believe they can handle an investigation on their own, but if they lack training, the process may be legally deficient or even appear biased. An inadequate investigation can expose the organization to significant liability, sometimes worse than not investigating at all.

The takeaway: Unless you have a trained HR professional or outside attorney guiding the process, conducting your own harassment or discrimination investigation is risky. Most employers are best served by bringing in someone with the right expertise to ensure that the investigation is both prompt and adequate. The attorneys at Strauss Troy regularly assist employers with these sensitive investigations and can help you navigate the process while reducing legal risk.

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Footnotes

1. U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Harassment in the Workplace (April 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
2. Id. at footnote 340.
3. Id.

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