Conducting the EEOC Investigation

Last week we discussed some preliminary steps to take when notified of an Equal Employment Opportunity Commission (EEOC) complaint. This week we will cover questions that should be asked during the investigative process. 

First, make the interviewee as comfortable as possible. The more relaxed people are, the more likely you are to get cooperation and factual information from them. Ask open-ended questions, meaning questions that cannot be answered simply, “Yes” or “No.” Consider this question: “Did you witness Mr. Thomas verbally harass Ms. Hodges in the lunchroom on July 14, 2008?” You will elicit a more thorough response if you phrase the question: “On July 14, 2008, what did you hear in the break room when Mr. Thomas and Ms. Hodges were eating lunch?”

Ask a series of questions that will get to the root of the issue, for example:

  • “Describe what happened in the lunch room on July 14, 2008.”

  • “What did Mr. Thomas say to Ms. Hodges?”

  •  “How did Ms. Hodges respond to Mr. Thomas’ statement?”

  •  “Who else was present at the time?”

  • “Did you ever hear other conversations of this nature between the two? What was said?  When?”

  • “Has Ms. Hodges ever discussed this or other incidents with you?”

  • “Has anyone else?”

  • “Did you keep any notes about this incident, or send any e-mails to colleagues, or talk to any other colleagues about this incident?” If so, to whom?

Reassure witnesses that their testimony is important. Try to determine if they may have any motivations to side with one person or the other. After obtaining these assertions from the witnesses or complainants, verify them when possible by talking to other involved workers.

If there are several instances of harassment or discrimination, treat each one as a separate incident and obtain the details of each, according to Rachel Love with the Phoenix law firm of Jones, Skelton & Hochuli. “Identify every date and time and look into each allegation as if it is a separate allegation,” Love recommends.

Keep notes or record any interviews. Whenever possible obtain written statements, preferably early in the investigation before the verbal interviews, and be sure to retain them. These statements can “box in” the witnesses and the complainant before the interview. Note any inconsistencies and try to determine the truth behind these inconsistencies. Often the complainant’s written report “allows you to see if the complaint is more emotionally charged or objective,” Love said.

There are pros and cons to writing a formal report at the conclusion of your investigation. The report provides a clear evidentiary record, the organization’s analysis of the events, and any recommendations. It can be used in the litigation process to prove the organization took affirmative steps, when indicated, to stop the offensive behavior. On the downside, the report is generally discoverable during the legal process. If the investigation is not completed properly or the conclusions are too broad or disciplinary action too lax, the report can hurt. Either way, it is best to work with legal counsel when drafting your final report. Ensure your report details only facts and makes only legitimate recommendations. Make no findings like, “We find harassment occurred,” Love warns. Instead, list any remedial action taken.

Once you have finished your investigation and notified the EEOC of the outcome in a position statement, ensure that you advise the complainant that the investigation has been concluded and that appropriate action has been taken. Do not be specific about the employment action. Explain any actions only in a general sense, Love cautions.

 The EEOC wants three things from you, according to the law firm.

  • Information about the charge.

  • Your organization’s cooperation.

  • Clear communication from your organization.

Don’t miss any EEOC deadlines. If you run behind in your investigation, communicate the delay to the investigator. The EEOC may interpret a delay as a lack of concern on the part of your organization. If the EEOC feels the charges are founded and your organization finds you in violation, a variety of things could happen. You could be forced to change your employment policies, be monitored by the EEOC, face a fine or be asked to provide employee training.

How you handle the investigation is critical to the EEOC complaint process.