Case Closed. Now What?

By Elizabeth Agnvall Feb 1, 2008
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HR Magazine, February 2008 After a workplace investigation, help heal lingering tensions or hurt feelings.

A workplace investigation can be stressful for all involved, disruptive for the organization and grist for the rumor mill. But when it's over, it's over--right? Not necessarily. When an investigation leads to termination, reassignment or a lawsuit, remedial actions can help clear the air. But most workplace investigations don't end that definitively.

Consultants, employment lawyers and human resource practitioners interviewed for this article agree that employee grievances filed through internal complaint systems generally don't result in serious adverse actions against employees. Indeed, an investigation that ends without a visible result can leave residues of rumor, bitterness or anger as the accuser, the accused and their co-workers all return to their jobs the next day. How can HR professionals help heal workplace rifts that developed? At the least, HR professionals and managers should communicate the results to involved parties and witnesses without violating confidentiality, and should evaluate what the investigation has revealed about employee relations. The outcome may lead to revisions of company policies, new training or re-evaluation of the complaint process.

Tell How It Turned Out

It is common for complaints, both internal and external, not to result in adverse actions against the accused. Of 75,768 charge receipts filed for all statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC) in 2006, the commission found no reasonable cause for 45,500--61 percent of the cases. (Under the EEOC's rules, as set forth on its web site, if the agency decides that the evidence does not show that discrimination occurred, the person who brought the charge is notified, the charge is dismissed, and "the charging party [has] 90 days in which to file a lawsuit on his or her own behalf.")

Of the 12,000 sexual harassment cases filed, EEOC personnel concluded that 47.5 percent contained unsupported allegations. The percentage of unsupported claims has climbed 17 percent since 1995. Reporting back to those involved after an investigation constitutes one of the employer's most important tasks. Failing to do so has become one of the most common mistakes. Officials in many companies are so afraid of violating investigation confidentiality that they do not go back to witnesses or sometimes even to the principal parties, says Patti Perez, SPHR, employment lawyer, HR consultant and president of San Diego-based Puente Consulting.

Employers can be "so paranoid of breaching confidentiality that they do nothing," Perez says, leaving workers wondering what happened. That's when employees begin to speculate and spread potentially damaging gossip. Without disclosing details of the investigation, employers can thank witnesses for participating, tell them the investigation is concluded and acknowledge some of the issues raised.

If everyone in a group or a department already knows that an investigation has been conducted, managers might consider holding an all-hands meeting. "There are many situations where an investigation can be discussed in a way that confidential information isn't disclosed," according to Perez, who cites an inquiry where she served as a consultant. Directors in an organization had complained about their executive director, who, it turned out, had acted in "odd ways, disrespectful ways," but not illegally. In fact, the investigation showed that all of the employees involved, including the executive director, were performing well, she says. "Nobody wanted anybody to leave the company."

Nonetheless, Perez continues, the investigation left anger and hurt feelings, and the executive said he didn't think he should have to change his behavior. She advised him that he would have to live with the consequences of employee discontent if he didn't improve his management style, and she outlined specific actions for him to take.

Perez also spoke individually with each of the site directors who had complained, advising them not to take the director's insensitive actions personally. One had complained of unfair treatment because of her race. Perez says she told the employee that while the director's actions may have been inappropriate and exemplified poor management, they did not violate procedure or laws protecting her from unfair treatment because of race. "I reported back to this woman without disclosing one iota of confidential information," Perez says. "She understood. She was on board."

Opportunities For Improvement

Failing to act on the knowledge gained by an extensive investigation wastes time and resources, Perez says. In addition to speaking with those who were involved in the investigation, the employer should try to discover the root causes that led to the complaint. Although no legal or remedial actions may be warranted, Perez says, training in areas such as diversity, sexual harassment or fairness might be called for. A manager's actions may not be cause for termination, for example, but the person might benefit from sensitivity coaching.

Nancy Glube, a member of the Society for Human Resource Management (SHRM) Employee Relations Special Expertise Panel, says that normally if allegations require a formal internal or external investigation, some type of action should be taken at the conclusion. "Where there's smoke, generally there's fire," says Glube, executive director of HR at a telecommunications company. Actions need not be as serious as termination or even discipline, she adds; they can include coaching, procedure changes or improvements in complaint mechanisms.

Paul Gibson, CHRP, SPHR, GPHR, vice president of Ontario-based Mattamy Homes, and another member of SHRM's Employee Relations Special Expertise Panel, says that throughout his HR career in various industries, all investigations have ended in some type of action, whether termination, discipline, warning, training, coaching or a serious discussion. "I've never had to initiate an investigation and found it to be completely unfounded," says Gibson, although in some instances he has been able to resolve misunderstandings informally. He adds that "there have been many cases where the allegation that was made turned out to be more serious than the reality."

No Retaliation, No Sudden Moves

After a workplace investigation, the employer should be careful to avoid missteps. For example, to protect itself legally, the company should ensure that the accused does not retaliate against the accuser, says Lynn Outwater, SPHR, managing partner of Jackson Lewis LLP in Pittsburgh. Even if it's determined that the accused didn't violate company policy, Outwater explains, the investigator should remind the accused that the accuser had the right to complain and that there must not be any behavior that could be considered retaliation against the accuser or witnesses.

And although it may seem that the easiest way to get everyone back to work after an investigation would be to move either the accused or the accuser to another job, employers should be cautious about making such moves. In 2006, the U.S. Supreme Court decided a case involving a reassignment following a workplace investigation. The landmark case, Burlington Northern & Santa Fe Railway Co. v. White, involved a railway worker, Sheila White, the only female employee at her worksite. She complained about her supervisor's insulting remarks about women. Burlington Northern disciplined the supervisor and reassigned White from fork-lift duty to track laborer, considered a less prestigious job although it did not change her pay or benefits.

After White was reassigned, another disagreement resulted in her being suspended without pay. A unanimous Supreme Court decision held that the reassignment and the suspension were retaliatory actions by Burlington Northern. This ruling, however, doesn't make it impossible to reassign employees after they have complained. The court stressed that transfers are acceptable as long as there is no loss of pay, benefits, duties, responsibilities or prestige.

A Chance for Redemption

If the facts that emerge from an investigation have effectively ended the accused person's career, Gibson says, "you should terminate. Having the living dead walk among us is no good." But if the transgression doesn't rise to that level of seriousness, he says, it's important to give the accused a chance at redemption. "People who come under investigation will often leave," Gibson says. "There's a shame element. The reality is that you are losing talent." An accused employee's departure is an unnecessary loss of talent if the business regards the employee as valuable and views the transgression as "nothing more than modest failure of judgment or even youthful indiscretion," he says.

If legal action or termination isn't warranted, Gibson says, the employer should make it clear that it is willing to give employees a second chance. "If you don't show people that there is an honorable side to the end of any of these things, they will assume the worst," he says. "They'll assume that they are blackballed and [will] leave."

It's up to the HR manager and the employee's manager to make it clear to the employee that the transgression doesn't have to end the employee's career and that the incident will not be held against the person.

Gibson recalls an investigation of a ring of men and women exchanging Internet pornography and tasteless jokes. Two employees were terminated; others had exhibited poor judgment but hadn't breached rules to an extent that warranted termination.

Gibson says that after the investigation, he met with the employees' managers, asking them if they could accept the employees' breaches of protocol but not penalize them in other areas of their work. If managers would be unwilling to later promote the employees, for example, Gibson wanted to hear about it.

The managers agreed not to unduly penalize the employees, and Gibson spoke with each employee individually to tell them that the incident would not be catastrophic for their careers. "Even if you have made a poor judgment," Gibson says, "the way you handle it can redeem you."

Keep the Channels Clear

When an investigation is over and fresh in everyone's memory, it can be useful to look back and see if the complaint process proved to be clear and well-communicated. In a decision last November, a federal appellate court in Chicago ruled that a restaurant chain's harassment-complaint procedure was ineffective because it was not written in a way that could be easily understood by teenage workers, who made up most of the employer's workforce.

If a company doesn't create an atmosphere that allows employees to feel comfortable coming forward with a complaint, they will often go outside the company. An external investigation involves extensive expenses and resources. "We are a very litigious society, so people like to be heard," Glube says. "A lot of companies have mechanisms in place to make sure that employees have a way of reporting up or identifying situations that they feel to be awry. It's better for the company to get it resolved internally rather than externally."

Attorney Outwater says a company doing things correctly will see a number of complaints each year, and most will be handled internally, not externally. "The right thing to do, legally, practically and morally," she says, "is to create an environment through your complaint resolution procedures that encourages people to come forward if there is a feeling that something is inappropriate."

Moreover, the end results of investigations don't have to be bad for company morale, Outwater continues. "When it's handled well, there's no lawsuit. Nobody quits, nobody resigns, nobody is upset. It's very common."

Elizabeth Agnvall is a freelance business writer in Washington, D.C.

Web Extras

SHRM article:
Eleven Tips for Effectively Handling and Responding to a Charge of Discrimination
(Legal Report) 

SHRM toolkit:
Sexual Harassment 

SHRM white paper:
Internal Sexual Harassment Investigation Guidance 

SHRM video:
Patti Perez, SPHR, employment lawyer and president of Puente Consulting in San Diego, on investigation communication.

Tips for Getting Back on Track

Consultant and trainer Wendy Bliss, SPHR, co-author of Employment Termination Source Book (SHRM, 2006), says post investigation​ legal and emotional land mines can be avoided with some common sense steps that--if carried out correctly--can actually result in an improvement in company morale and productivity.

Here are practical tips from Bliss for making it happen:

  • Make sure human resource professionals become involved in follow-up conversations with all parties.
  • Check periodically to ensure that the accuser is not experiencing new problems.
  • Unless the investigation shows that the accuser was not credible, have periodic discussions with the accused about the issues or behaviors that led to the allegations.
  • Give the accused an opportunity to share his or her perspectives outside of an investigative context. Give the person a chance to process his or her emotions about being accused.
  • Consider individual coaching or training for the individuals involved.
  • Consider workforce training. "Formal education or training helps people discuss the situation and have questions answered," Bliss says. "It's a good way to have people understand what's appropriate or not appropriate."
  • Look closely at relevant policies to determine if they addressed the situation adequately.
  • Make sure treatment of all parties is consistent with how other employees
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