Internal investigations can be daunting. It is difficult for employers to know who is best to conduct them, with whom the employer should speak, how much information should be revealed and, importantly, what conclusion should be drawn. That’s why this week I’m answering when you are conducting an internal investigation: Does an employer need another witness to corroborate a claim of harassment or discrimination?
No. When an employee makes a claim of harassment or discrimination, and an internal investigation into the claim is conducted, it is not necessary to have another witness corroborate the claim to find it credible. Often, I hear the assumption that the employer could not credit the complaining employee because there was no one else to verify the allegation. When I confirm that the Employer credited the accused, they often say no; we just did not have evidence to support the claim. However, if there are only two people who were witness to an incident, you have to credit one of them to draw a conclusion about what transpired.
There will be instances where only the employee making the claim and the alleged bad actor were present for the offending comments or behavior. There is no way that an employer can be sure of what happened in this situation. However, the employer’s obligation is not to be right but to conduct an investigation and make the best determination possible based on the evidence collected. Unfortunately, sometimes this means the employer has to make a pure credibility determination. Employers need to remember that the ultimate conclusion simply needs to be reasonable and supported. This can be a tough decision, and I often encourage a discussion between 2-3 individuals and trusted counsel to make it. This alleviates some of the pressure and can add helpful perspective.
ABOUT KATHARINE BATISTA
[email protected] | 267.338.1319
Ms. Batista is an employment & labor attorney who provides businesses with advice and risk mitigation strategies and zealous representation in litigation. She frequently represents businesses in the hospitality, financial services, automotive dealership, engineering and architecture and healthcare industries. Specifically, Ms. Batista successfully defends employers against claims of discrimination and harassment, retaliation, wrongful termination, and wage and hour violations. Ms. Batista also commonly represents her clients in actions involving employee mobility and trade secret theft. Employment and labor law is ever-changing. Employers need to feel secure in how they manage their employees so they can focus on their business. Ms. Batista affords her clients that security.