The case generated headlines not just because of the size of the award but also because SHRM is the world’s largest professional association dedicated to the practice of human resource management and publishes guidance that human resource departments rely on to properly execute their duties, which include conducting workplace investigations. The most important takeaway, though, is that employers need to be thoughtful and thorough in responding to and investigating complaints.

Key in the Mohammed case were questions about the impartiality and qualifications of the individual who investigated the employee’s complaints, and the lack of documentation of the investigation. The HR investigator’s impartiality was called into question by the fact that they played an active role in the individual who was being accused of discrimination’s communications with the employee who complained. The HR investigator’s lack of training and the fact that this was their first workplace discrimination investigation called into question their qualification to conduct the investigation. And finally, a lack of documentation of the investigation raised questions regarding its effectiveness.

These costly errors create a teachable moment for employers and HR leaders. It is critical to regularly review your policies and practices for workplace investigations to ensure they align with the Equal Employment Opportunity Coalition (EEOC) standards and best practices. It’s also important to make sure that the individual conducting the investigation has the experience and support to do so effectively. Finally, for sensitive investigations where there may be a desire to shield the results from disclosure if a claim is brought, employers should consider involving an attorney and taking the steps necessary to treat the investigation as privileged.

As the EEOC has indicated in prior guidance, the following are the key factors to consider in ensuring that an investigation meets the employer’s obligations:

Conduct Investigation Promptly: Investigations should be conducted as soon as reasonably possible after the complaint or situation comes to the company’s attention. Employers should act quickly – but carefully – when a complaint is raised. Don’t rush into an investigation before you are ready, but don’t delay. Delay can lead to inaccurate recollection and other investigation difficulties.

Impartial, Qualified Investigator: Investigations should be conducted by someone who is well trained (and ideally experienced) in interviewing witnesses and assessing their credibility. In addition, it’s important that the investigator and those assessing the investigation do not report or answer to the alleged wrong-doer, and that the person alleged to have discriminated or retaliated does not have any control over the investigation.

Be thorough and DOCUMENT!: It’s important that an investigation cover the key issues in question thoroughly and that both the steps taken in the investigation and the investigation findings are clearly documented. This is key not only for the specific complaint at issue but also because it can help employers identify patterns of improper behavior and take action to prevent future issues. It also can show the employer’s commitment to keeping discrimination, harassment and retaliation out of the workplace.

Laura Friedel is a partner and leader of the firm's Employment & Executive Compensation Group. She helps businesses maximize their most important and often trickiest asset – their employees. Laura works with companies to develop employment documents, policies and practices that improve employee relations while protecting the company's investment in its people and minimizing legal risk.

contacts

Carlos Frühbeck Olmedo