An employee brings you a complaint alleging discriminatory treatment in the workplace. What questions do you ask? How do you move forward? What should the investigation look like? Who should be involved? These are just some of the many questions Natalie intends to answer in this series. Here is where your knowledge of the laws prohibiting discrimination and the level of evidence required to support a complaint is critical. Although litigation avoidance should certainly motivate you to effectively manage the complaint, your real objective should be to take the steps necessary to eliminate discriminatory practices throughout your organization. To that end, take all claims seriously and be consistent in your approach to each one.
Assuming that you and your team are well-equipped to proceed in the proper management of the employee’s complaint, we would like to offer some guidance to consider for the initial intake of the complaint.
Your general attitude about the complaint and the reporting employee must be impartial and objective. Set aside any prior interactions or impressions you have of the complainant; never make assumptions or prematurely draw conclusions. You may, of course, ultimately conclude that the claim has no merit, but collect the facts first and be sure you can support such a conclusion!
When interviewing the reporting party, you may be caught off guard, so you may find it helpful to create a toolkit or checklist to avoid missing any crucial questions. If you do so, be sure your checklist doesn’t distract you from listening to the responses and using those responses to inform thoughtful and necessary follow-up questions. Consider the use of a witness/note-taker if possible so you can focus on obtaining the right information and engaging in an authentic conversation with the reporting party. Crucial questions should be open-ended and encourage the reporting employee to expand. From our perspective, some crucial questions include the following:
- Can you identify specific incidents that support your concerns?
Get as many details as possible concerning when and where the incidents took place, who was involved, and any witnesses that may have been present. Consider the proverbial “who-what-when-where-why-how” framework. These questions will likely reveal additional witnesses who will need to be interviewed during your investigation.
- Is there any documentation to support your concerns?
Emails, text messages, notes the complainant has taken, company records, etc. may all provide critical corroborating evidence. Do not neglect to ask for documentation. Even if the reporting employee can’t provide documentation, consider records that you may have at your disposal that may be related to the employee’s complaint.
- Who else should I talk to?
Beyond discussing the issue of witnesses to specific incidents described above, the reporting employee may know of others who have similar concerns or experiences. Those individuals may provide crucial evidence as well.
- Is there anything else we didn’t discuss that seems important to mention related to the concerns we did discuss?
End the interview with a “catch-all” question such as this one to potentially jog the reporting employee’s memory about anything they may have forgotten to report or left out.
How you ask questions is similarly important. We just discussed the importance of asking crucial questions, possibly following a checklist. The effect may sometimes come across as interrogatory rather than conversational in nature if you are not careful in how you ask the questions. You must create an atmosphere in which the complainant feels comfortable and safe to disclose experiences that may be difficult and hurtful to talk about. Spend some time building rapport. Provide the reporting employee with information regarding how the conversation will unfold, and outline expectations for the investigation to follow. Pay attention to the verbal and non-verbal messages you send. Maintain eye contact and an open posture.
The issue of confidentiality is also pertinent here. A mistake that investigators sometimes make is promising confidentiality in order to encourage the reporting party to open up. Such guarantees are often not possible, because there may be multiple stakeholders/decision-makers who have a need to know. One approach you can take, however, is to remind the employee of your organization’s policies against retaliation and assure them that violations of those policies are taken similarly seriously. An effective “open door” policy is also helpful in establishing the right kind of environment for the intake of discrimination complaints.
So, what are the key takeaways of the intake of a discrimination claim? Maintain objectivity always. Ask crucial questions. Engage in authentic dialogue. Avoid interrogation. Get the details.
If you are uncomfortable with your level of legal expertise concerning discrimination claims, consult an attorney immediately. Natalie Lynch can provide the assistance you need to expertly guide your effort.
Cite this article: Lee, L. M. (2016). Intake of Discrimination Claims: Get It Right the First Time. Available: https://www.lynchlf.com/practice-areas/receiving-discrimination-complaints/intake/