Companies face increasing demands for internal investigations. This increase may be attributed to a surge in retaliation charges, whistleblower liability and the creation of internal hotlines making it easier for employees to raise concerns, among other things. While a company already may have an existing internal investigations process, it must proceed with caution: not all investigations are created equal.
An illustration: the Tenth Circuit Court of Appeals in Denver has criticized an employer’s defense to a sexual harassment claim because the employer’s investigation fell short of the Court’s expectations for thoroughness. In Kramer v. Wasatch Count Sheriff’s Office, et al., 743 F.3d 726 (2014), the employer raised an affirmative defense that it exercised reasonable care to prevent and remedy alleged sexual harassment when it engaged in an internal investigation, a defense approved for certain cases by the Supreme Court in its Faragher/Ellerth decisions.
The court in Kramer, however, concluded that there remained a genuine issue of fact as to whether the employer’s investigation was deficient, for several reasons, including: (1) its failure to involve human resources in the investigation, relying instead upon an individual who had no specific qualifications and who was never trained to investigate a complaint of this nature; (2) the investigator was ignorant of the employer’s written investigation procedures; (3) the investigation was used as an opportunity to inquire into unrelated misconduct of the complainant; (4) the investigators failed to understand that a Title VII compliance issue was involved, and not simply an intra-office relationship, and (5) upon concluding the investigation, the employer did not take any actions to improve its sexual harassment prevention program as a whole.
This decision counsels that:
- A company’s written policies and procedures must be reviewed and updated to account for changes in the law of retaliation and whistleblower liability and steps should be taken to assure these directives are followed consistently;
- Individuals conducting a workplace investigation must be trained to understand its purpose and scope, and the mean of conducting the investigation ;
- Companies should treat every investigation as an opportunity to identify ways in which to improve policies, procedures and investigative techniques.
Regardless of the subject of a complaint, proactive companies may avoid liability and foster a better working environment.