Workplace Investigations: A Defensible Process

Under Faragher and Ellerth, when a supervisor harasses without a tangible employment action, the employer escapes liability only by showing it exercised reasonable care to prevent and promptly correct harassment — and that the employee unreasonably failed to use the complaint process. The policy is the first half; the investigation is the second, and it's judged in hindsight by juries. The same machinery defends discrimination, retaliation, and policy-violation terminations: a documented, impartial process is what separates "we looked into it and acted" from "we took the manager's word." When a complaint later becomes an EEOC charge, the investigation file is the position statement's backbone.

Start the clock in writing: date received, allegation summary, scope of what will be investigated. Choose the investigator for impartiality — outside the chain of command of everyone involved, trained, and available to move fast; days, not weeks. Then consider interim measures that protect the complainant without punishing them: schedule separation, reporting-line changes, or paid leave for the accused where warranted. Moving the complainant to the worse shift is itself adverse action — the retaliation guide's first example. Tell both parties the rules: no contact about the matter, no retaliation, discretion but not secrecy.

Order matters: complainant first (get the full account, the who-what-when-where, the documents, the witness list), witnesses next, the accused last — with enough specifics to respond to, and a genuine chance to name their own witnesses and evidence. Take contemporaneous notes that record facts and quotes, not impressions; assume every page will be an exhibit. Chase the documents — messages, badge records, schedules — because they out-remember everyone. When accounts conflict, make an explicit credibility determination: plausibility, corroboration, specificity, motive, consistency. Writing "we found A more credible than B because…" is what makes an inconclusive-looking file a defensible one.

Conclude on preponderance of the evidence: sustained, not sustained, or inconclusive — as to each allegation. Then act proportionately and consistently with how similar findings were treated before: coaching, discipline, or termination through the termination process, with the severance guide in reach when separation is negotiated. Close the loop with both parties — the complainant hears that the matter was investigated and addressed (not the discipline details), the accused hears the outcome and expectations. Calendar a follow-up check with the complainant thirty days on: it verifies no retaliation, and it documents that the correction stuck.