Well-handled investigations put employers in the best position to successfully defend an EEOC charge of discrimination filed by a current or former employee. Before the employer can respond to a specific charge, it must determine exactly what happened. Having an experienced employment law attorney conduct or supervise an internal investigation, can be very helpful. The attorney can ensure that relevant facts are gathered, appropriate documents are reviewed and proper recommendations are made.
If an attorney conducts the investigation, be sure to discuss which materials and discussions may be treated as confidential or privileged. An early and thorough evaluation is important to determine potential liability exposure and help avoid surprises if the matter goes to litigation. This also gives the employer an opportunity to consider the value of early mediation.
The investigation should entail thorough interviews with all relevant witnesses, including managers, supervisors, decision-makers, similarly-situated-employees, and HR staff. The interview is an opportune time to ask those involved to refrain from discussing the charge or the investigation with coworkers or anyone outside the company so that the integrity of the investigation is maintained.
However, employers cannot prohibit their employees from discussing the investigation or issue a threat of potential disciplinary action, as this practice has recently been subject to increased scrutiny by the EEOC due to its potential “chilling effect” on an employee’s right to complain about discrimination.
During the investigation, the employer will also want to review all relevant documents including but not limited to the charging party’s personnel file but also the files of supervisors and others involved. If applicable, the employer may need to review the employee’s medical file. Be sure to go over the relevant policies and procedures and gather all signed acknowledgement forms.
In addition, the employer should collect any grievance files, internal complaints and information about other investigations involving the charging party.
Following these careful steps ensures that the employer is putting its best defense forward. Ancel Glink’s team of labor and employment attorneys are available to assist in such investigations and have a proven track record of success in the defense of charges alleging employment discrimination in both the EEOC and the Illinois Department of Human Rights.
