EEO Investigations: 6 Killer Mistakes

Topic: HR Policies & Procedures

With EEO investigations, says attorney Jonathan Segal, whatever you do, someone'
s going to be unhappy. Either you didn't investigate hard enough or you investig
ated too hard. Here are 6 common investigation errors that Segal sees all too of
ten.

When it comes to EEO investigations, attorney Jonathan Segal has seen it all, an
d much of what he's seen companies do is wrong.
Segal, a sought-after speaker on HR legal topics, is a partner with Wolf, Block,
Schorr and Solis-Cohen, LLP, in Philadelphia. He listed the mistakes employers
most commonly make in investigating discrimination or harassment complaints in o
ur sister BLR publication, the HR Manager's Legal Reporter.
Mistake #1: Managers don't report complaints to HR. Unfortunately, many complain
ts never even make it to HR. Supervisors tend not to report because:
They are honoring a request for confidentiality from the employee.
The employee requested no action be taken.
The supervisor thinks the claim doesn't have merit.
The supervisor thinks the complaint reflects badly on his or her management skil
ls.
The supervisor thinks "competent managers should be able to resolve complaints o
n their own."
You must tell your supervisors and managers that they are required to report com
plaints, says Segal-even if the employee asks that it be kept confidential, and
even if the supervisor thinks the claim lacks merit. The decision of whether to
investigate is yours, not the manager's.
Mistake #2: HR takes no action on anonymous complaints. HR managers often think
there's nothing they can do in this situation, but you should act, says Segal. F
or example, you can circulate a memo stating that there has been a complaint, re
iterating the company's position, reminding people of the complaint procedure, a
nd stating "If you know who did this, please report it so we can take disciplina
ry action."

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Mistake #3: HR ignores exit interview complaints. If during an exit interview an
employee says, "I had to resign because of the harassment I have been experienc
ing," watch out, says Segal. This sounds like a constructive discharge (a situat
ion where it's your error that makes the employee quit, therefore placing the bl
ame on you) in the making. People think it's too late to do something, but it's
not, says Segal.
Tell the person, "Upon your resignation, we found out for the first time about t
his allegation. Would you reconsider while we investigate and take appropriate a
ction?" You've then mitigated the situation and made a constructive discharge cl
aim unlikely, Segal says. But even if the person does leave, you have an obligat
ion to investigate, Segal adds.
What if the terminated employee says that the termination was based on age, race
, or ethnic bias? Look into it to be sure that there is no bias.
Mistake #4: HR assumes that the government's investigation will be sufficient. M
anagers are tempted to say, "The EEOC will investigate, so we don't have to." No
, you do have to do your own investigation, says Segal. If you don't investigate
, it may appear that you don't care. Furthermore, in doing a probe, you're makin
g sure that your side of the story is clearly documented.
Mistake #5: Managers ignore apparent patterns. Sometimes there is no complaint,
but it becomes clear that there is a problem. For example, if many people are fl
eeing from one department, follow up, says Segal. Don't leave a problem out ther
e to get worse and develop into a lawsuit.

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Mistake #6: Managers investigate when they should withdraw. There are a few situ
ations in which you, as the HR manager, must not conduct the investigation yours
elf, says Segal. The most common are the following:
When you have a personal relationship with either party.
If you will be a witness in any proceedings that might result.
If you don't think you can be objective.
If "everyone knows" you hate the person being investigated.
If you have to investigate the boss or the COO; you may want to outsource this i
nvestigation, says Segal.