How to Investigate a Claim of Discrimination

You have policies in place that prohibit discrimination at your company. You’ve communicated firmly and frequently that this behavior is inappropriate, illegal, and will not be allowed. You’ve informed staff they are not required to tolerate discrimination of any kind; they’re empowered to respond immediately that the comment or behavior is inappropriate or to report the action to someone in authority to address it.

You trust your staff is respectful and professional, yet a complaint of discrimination has been brought. For all your intentions and efforts, it can happen in any workplace. No matter the size of the company, discrimination can occur. From the slightest, unconscious comment to the most egregious acts of bias,  there are opportunities for bias wherever there are people.

Leadership’s response

How leadership responds to complaints is critical in maintaining a professional organization, advocating for staff, and protecting the organization. Your policy asks employees to report incidents immediately. Your response should be as urgent.

From the first meeting to discuss the issue through the investigation and conclusion, it’s essential to take steps that protect your staff and your business.

Follow these basics steps:

• Get help when necessary
• Work toward a conclusion that satisfies all parties involved.

Don’t put off listening to an employee complaint — the sooner you hear the concern, the sooner it can be resolved.

Hear the complaint quickly and confidentially

Schedule a meeting to hear the employee complaint quickly and privately.

Always assume a complaint is being brought in good faith: that the employee has a genuine concern.

A dismissive attitude, or one that signals you don’t believe the employee is being truthful, may escalate the problem. Your role is to be accessible: it may be an unpleasant task, but it’s necessary to handle it immediately and professionally.

Verify the complaint is based on the employee’s protected class. In some instances, the issue may be of concern but does not meet the definition of discrimination under the law. If the complaint could be discrimination, proceed quickly and professionally.

As with all personnel matters, confidentiality is essential. You’ll want to let the complainant know you’ll do your best to keep the case confidential, but you cannot make promises. Notify the individual that if the matter goes before a governing board, like a state or federal Department of Labor, or to the courts in a lawsuit, their privacy may not be maintained.

As with all personnel matters, confidentiality is essential.

As you talk to the employee lodging the complaint, the accused, and any witnesses, assure them you’ll keep the matter as confidential as possible in-house. There may be situations, however, when names or incidents have to be discussed to investigate thoroughly.

Plan on impartiality

Your job initially is to listen, not criticize or commiserate. At this point, you are a collector of facts, not a shoulder to cry on, nor the organizer of an angry mob. Let the employee know that while you may be sorry they are upset, your role is investigatory at this stage, and that you must remain impartial until all the facts are collected.

Don’t characterize the incident(s). Comments like ‘I’m sure they didn’t mean it’ or ‘that doesn’t sound like something they would do’ minimize the employee and signal you’re not taking their concerns seriously.

Alternately, don’t jump on the critique bandwagon, either. ‘That sounds horrible!’ or ‘you poor thing’ implies you’ve already drawn a conclusion in the investigation. It hasn’t even begun.

Begin the discussion

Start the meeting with appreciation. It may seem counter-intuitive, but having a staff member bring a complaint to you rather than to the EEOC or a law firm, is a net positive. You have an opportunity to resolve the problem before it becomes:

• Intrusive
• Costly
• Public

Recognize the employee may be uncomfortable and try to put them at ease. ‘Thank you for letting me know about the issue’ is a good way to begin.

Confirm that employee concerns are valid. ‘We take these complaints seriously and will work toward a quick and satisfactory resolution.’

Ask for as much detailed information as possible. Ensure you keep comprehensive notes as the employee recounts the incident(s). Let the staff member know that you take notes is essential to ensure all the facts they present are documented and clear.

Ask comprehensive investigation questions

You can use a standard list of questions or allow the employee to recount the situation. However, touch on all these points to ensure your investigation is as comprehensive as possible.

1. What happened? Ask for details and specifics.
2. Who committed the alleged comment, action, or behavior?
3. Did it happen to you, or are you reporting as a bystander/witness? If this person was a witness, who was the object of the comment or action?
4. When did this occur?
5. Where did it happen? Clarify by asking: Has it happened more than once? Is it ongoing?
6. Were there any witnesses to the behavior? Please name them.
7. Is there any physical evidence of the action – emails, texts, etc. you can provide?
8. Did you let the person know you were offended or concerned? If so, what was their response?
9. Did you report the incident(s) to anyone else? If so, who and when? Did they take any steps to resolve the situation?
10. Do you have any other information that might be helpful for the investigation?

As you ask these questions, other avenues of discussion may present themselves. You may ask for more detailed information or other instances they may have witnessed. If the person being accused has been seen committing the same offense against others, ask against whom it was directed, for example. Be open to more details, but don’t let the conversation turn into an hour-long grievance.

Ask the employee if they’re able to go back to work. You may need to give them time to compose themselves, or they may need the remainder of the day off. Work with the staff member to ensure they can return to their workstation as comfortably as possible.

Warn of retaliation

Let the employee, and everyone you interview concerning the complaint, know that retaliation is a serious offense that will not be tolerated. The employee may have warned the accused they planned to report the incident(s), or they may have brought the issue to you without notifying anyone else. In either case, the accuser must not be the object of retaliation.

Inform the staff member that they should report back to you immediately if, following the complaint, they feel they are in any way being:

• Abused
• Treated differently
• Retaliated against

You cannot allow retaliation. It can be as serious of an infraction as discrimination.

Require confidentiality

Advise the employee that the investigation is now a private matter that is being managed by the company. They must not discuss the situation with the accused or with coworkers. If they are approached by the accused or others to discuss the complaint, they should refer that person to HR or to whoever is managing the investigation.

If they feel threatened or intimidated by someone who wants to discuss the complaint, they should notify the investigator, as well. Maintianing confidentiality is critical in order to successfully resolve the claim.

Finalize the initial meeting

End the meeting with a question but without making promises. Ask the employee what resolution they feel is appropriate to the situation. They may ask for:

• An apology
• That the incident doesn’t occur again
• The termination of the offending employee

Let them know you’re documenting their wishes but cannot make any promises.

Notify the employee you’ll be doing as comprehensive an investigation as possible, looking into the allegation and discussing it with any witnesses as well as the accused.

You cannot promise specific outcomes, but assure the employee that your investigation will be as thorough as possible. Also, let them know that necessary steps will be taken to resolve the issue.

If you can, give an approximate timeline for when you feel your investigation may conclude. You may be able to finalize it in a day or so if you only have to speak to one person. If more witnesses are involved, it may take longer.

Let the employee know you’ll be updating them, as appropriate, on the investigation timeline — but not about the interim findings.

Separate if necessary

If the accusation is egregious or the worker is very upset, consider separating the employees during the investigation. For some employees, facing the person who discriminated against them is challenging. They may feel even more intimidated after they’ve filed their complaint. Ask the employee if they’re comfortable returning to their assigned area or if there’s an alternative that would make them more at ease during the investigatory period.

If separation is necessary, make sure it doesn’t exacerbate the problem. You don’t want to appear to ‘demote’ an employee who’s filed a complaint, even if that would physically remove them from the presence of the person they allege discriminated against them.

If they’re comfortable with such a move, allow it. If not, work with them to find an alternative. It may mean moving workstations, temporarily working remotely, or taking some vacation time off. Try to find a solution that works for the short length of time your investigation should take.

Talk to witnesses, if any

The employee may have provided the name(s) of witnesses that can corroborate their complaint. Contact these employees and ask them to meet with you. Don’t reveal the nature of the meeting until you can speak with them privately. Ask them to keep the meeting itself confidential as well.

Some witnesses will be happy to discuss what they heard/saw. Others may be hesitant to get involved. They may fear retribution if they speak on behalf of their colleague. This can be a difficult obstacle for investigations. Try to assure the witness you’ll keep their input as confidential as possible. Remind them:

• We are all responsible for a respectful, professional workplace
• They don’t want to work somewhere this behavior is allowed
• It’s essential to speak up when it does happen to make sure it’s dealt with appropriately

Take down as much information as the witness can provide, using some of the original complainant’s questions to guide the conversation. Ask if they know of anyone else who may have seen/heard the discriminatory behavior.

Remind witnesses who feel they are being retaliated against because they provided information to notify you. If a manager or coworker complains, berates, or harasses them, they should inform you immediately.

Notify witnesses that the investigation is a private matter being managed by the company. They are not to discuss the situation with the accuser, the accused, or their coworkers. Confidentiality must be maintained for the company to come to a successful resolution of the claim.

Review any evidence or documents

If provided, review any materials the complainant or witnesses gave you. This could be in the form of:

• Emails with derogatory language
• Inappropriate graphics
• Abusive text or voice messages
• Videos the employee or coworkers took using their phone

Keep copies of all these materials for the investigation file.

Speak to the accused

There’s no avoiding it. No matter how uncomfortable the conversation will be, you’ll need to speak to the accused.

Again, your role is an impartial investigator, not a judge or a source of comfort. The person who filed the complaint may have been nervous and anxious. The accused person, however, may respond in the opposite manner.

Anticipate that the individual may be shocked, surprised, hurt, or angry that a complaint was filed against them. You’ll want to prepare for a range of emotions to ensure you have a professional attitude toward the meeting.

Start with the facts: ‘A serious matter has been brought to our attention that warrants a full investigation. A charge of discrimination has been leveled against you, and we’ll need your full cooperation to resolve the matter.’

Give them a chance to compose themselves before you continue. If necessary, let them know you understand they’re shocked or upset. Even so, you expect professionalism during the investigation. Provide them with the details of the claim and ask for their response. Your questions will mirror the original complaint interview template but with a few modifications.

Investigation questions for the accused employee

1. This situation was reported — tell me what happened from your point of view. Ask for details and specifics
2. When did this occur?
3. Where did it happen?
4. Were there any witnesses to the behavior? Please name them.
5. Can you provide any physical evidence of the action – emails, texts, etc.?
6. Was there a larger context to the situation that hasn’t been included?
7. Did the person tell you they were offended or concerned? If so, what was your response? Did you take any steps to resolve the situation?
8. Do you have any other information that might be helpful for the investigation?

As with all the parties of the complaint, maintain impartiality. Your role is investigatory. Don’t offer guarantees it will be alright or warnings that disciplinary action will follow. You’re gathering facts, not making determinations.

Remind the accused of your expectations

If there is tangible evidence of the discrimination, you may show it to the accused and ask for their response. Document any reply but do not offer or provide copies of the materials.

Don’t offer guarantees it will be alright or warnings that disciplinary action will follow. You’re gathering facts, not making determinations.

Remind the employee that the matter is confidential and they are not to speak to anyone in the company about the complaint. They are not to discuss the issue with the employee who filed the claim. The matter is now in the hands of HR or another leader who will manage the situation.

Notify the employee that retaliation of any kind against the claimant, colleagues, or coworkers who may have provided testimony will not be allowed. Warn them that retaliation can take many forms. They must not discuss the matter with the employee, treat them differently, or subject them to adverse employment decisions.

Give the accused employee time to compose themselves before going back to work. If that’s not possible, they may need to be sent home for the day. Remind them that when they return, professionalism is expected and required.

Review the evidence

After you’ve gathered as much information and testimony as possible, it will be time to review your findings and make a determination. In some cases, the behavior was inadvertent or unintended. In others, it was deliberate and meant to cause harm. What you find will inform the actions you take moving forward.

In many cases, unfortunately, there is no clear answer as to what did or didn’t happen. It may be a case of one employee’s word against another’s, with no evidence or witnesses to corroborate either side’s version of the situation.

This may be a hurdle for the investigation. How you move forward will depend on what you’ve learned.

The different outcomes you may experience

Whatever you’ve uncovered, it’s time to notify the employees and take appropriate action.

If the behavior/action was based on a lack of knowledge

In some cases, the employee isn’t aware they’ve caused offense. An example may be a manager who schedules a team member to work on days that should be observed as days off work due to their religious beliefs. The manager may be unaware of this requirement and is scheduling without intending to discriminate.

You may choose to meet with the manager/coworker together or separately. After they’ve been notified of the error, ask the manager to apologize to the employee and work to ensure the issue is resolved.

If the behavior was unintentional

Unintentional discrimination may be the result of disparate impact. A manager may schedule an employee for shifts they believe will make it easier for the worker to handle family obligations. This may result in shifts that receive fewer tips or less prestigious work assignments.

Advise the manager about disparate impact and how it is discriminatory, no matter the intent. Separately or together, work with the employee and manager to discuss a plan to move forward.

If the behavior does not meet the standards of discrimination

Some complaints do not rise to the level of discrimination. The action may not be discriminatory, or the employee may not be in a protected class. While the behavior needs to be addressed and may be worrisome or unprofessional, it’s not discrimination.

An example may be a manager who assigns menial tasks to new team members. In contrast, complex or rewarding work may be reserved for more tenured staff members. The complainant may believe they are the victim of age discrimination: that, based on their age, they’re being assigned low-value work.

Depending on where you do business, if the complainant is under 40, the claim of age discrimination does not apply. Under the Age Discrimination in Employment Act (ADEA), employees over 40 have job protection.

What about reverse age discrimination?

Some states have limited laws that protect against reverse age discrimination, but this scenario would likely not be discriminatory. In states without reverse discrimination laws, the employee, if under 40, would not be in a protected class.

If there were reverse discrimination laws where the company does business, the manager would likely be within their rights to assign more complex or rewarding work to employees with more longevity with the company.

Be clear with the staff member that, while you appreciate their concern and viewpoint, the matter is not discrimination under the law or your company policies. Thank them for bringing the issue to your attention. Inform them the investigation is concluded and no further action will be taken.

If the behavior was discrimination

Whether intentional or not, some conduct does rise to the level of discriminatory action. For these, you’ll want to take appropriate disciplinary action against the accused up to and including termination if necessary. The level of discipline should be proportionate to the offense.

Progressive steps or single warnings may be necessary. An example of progressive steps follows:

• An apology, change of behavior, and notation in the employee’s personnel file may be all that’s required
• A first warning letter, the requirement to change the behavior, and a short probationary period to ensure compliance may be necessary
• If the behavior/actions continue, additional progressive discipline may be needed
• Termination, even for a first offense, may be necessary depending on the severity of the action

If you’re unsure of what action is appropriate, contact an expert.

If you’re unsure of what action is appropriate, contact an expert. You may speak with legal counsel or an HR advisor to assist. They can offer examples of disciplinary actions that are appropriate based on the offense.

If no determination can be made

There are instances where opposing accounts offer no clear indication of who is right or being truthful. These ‘he said/she said’ type scenarios may be the most difficult to manage. You’ll still need to close the investigation (as much as possible) to everyone’s satisfaction.

Discuss the matter with both employees, informing them there is no substantive conclusion to the allegation. You may ask if they’re comfortable having the discussion together or if they would prefer to meet separately. In either case, you’ll need to be forthright: you cannot prove or disprove the complaint. Let them know the matter is documented, and you’ll be alert for any subsequent issues.

Advise both parties you believe their version of the incident was provided truthfully and in good faith. Still, you cannot take further action without the ability to verify the claim. Notify both staff members you expect professionalism moving forward. There is zero tolerance for retaliation of any kind.

Suggest options regarding how they interact going forward

If they feel they cannot work together, you may suggest an opportunity for either or both to be voluntarily reassigned. If that is not an option, you can offer mediation to help them work together in the future. Another option may be to suggest individual counseling if they’re unhappy with the outcome.

For now, without additional evidence or testimony, you’ll need to admit there’s little the company can do. Avoidance, as much as possible without impacting productivity, may be the plan for the short term. Another may be to ensure no ‘closed-door meetings’ occur moving forward.

The complainant may ask that others be present whenever they interact with the accused. A colleague may be of assistance for daily discussions or an HR representative for private conversations. You may have to negotiate back and forth with both employees to devise a solution that allows them to work professionally moving forward.

If the allegation was provably false

On rare occasions, an employee will bring forth a charge of discrimination they know is untrue. If you can verify the accusation was knowingly false, you may wish to take disciplinary action against the accuser. Assure whatever corrective steps you take are commensurate with the infraction.

It’s time to wrap up the investigation

Now that you have gathered all of the facts and supporting information and have made a determination, you’ll want to document your findings.

Finalize the complaint

As with every stage of the investigation, document every conversation and interaction. Be sure to include complete copies of the investigation in both employees’ files in the event an EEO claim or lawsuit is filed. Some employers ask staff to affirm, by signature, that their complaint was received, investigated, and resolved.

Do not provide copies of any of the documents related to the investigation to either the complainant or the accused. These resources may contain confidential information not disclosed in the inquiry or infringe on the privacy of individuals interviewed. Follow up as needed after the complaint is closed to ensure employees are working together professionally and productively.

Provide training

You may determine that training to recognize and prevent discrimination in the workplace is warranted. Training leaders to avoid illegal discrimination may be a part of your disciplinary action plan. Doing so provides managerial staff with guidance on recognizing and avoiding discrimination.

Training staff members may also be needed. Particularly if coworkers were aware of unacceptable behavior but did not report it.

If you don’t require training before an incident occurs, you should consider implementing it for all staff after a complaint has been lodged. It signals your commitment to your staff members, a culture of respect, and a workplace free of harassment and discrimination.

Reflecting on the investigative process

You must immediately and impartially address a charge of workplace discrimination. Hold an independent investigation even though it may be challenging to set aside preconceived notions and personal relationships.

Doing so protects the rights of employees — both the accuser and the accused — the organization’s culture, and the business as a whole.