A workplace situation requiring further investigation has come to your attention. Before you start asking questions, you must identify who is going to ask the questions.

In most situations it is advisable to have two people present for witness interviews – one to focus on carefully listening to and observing the witness, and one to focus on taking notes. And if you are the one asking the questions, it is good to have a witness for your own protection. But having more than two investigators in an interview is often unwieldy and might be viewed as unduly threatening. So, two usually seems like the best number.

In designating who will constitute this team of two, you will consider whether to use attorneys, and whether to staff the investigation internally or with outside personnel, attorneys or otherwise. Regardless of how you answer those questions, it is important that the employer consider the “demographic” makeup of the team.

Of course you will trust the individuals you have chosen to undertake this important task, but it is nonetheless important to consider whether either investigative team member is in the legally protected class of which the complaining party is a member, and whether the complainant says that membership may have caused the complained of behavior.

Objectives of an Investigation

Look at the investigation as having two primary objectives:

1. To obtain as much information as possible. In order to respond appropriately, the employer much have as much and as accurate information as possible. Therefore, we want to witnesses to speak as freely and frankly as possible.
2. To position the company – even beyond making the best response resulting from the best information – to successfully defend any future legal actions resulting from the conduct complained of. The best defense is the best response resulting from the best information as noted above, but this second objective entails additional litigation strategic objectives.

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Having the right demographic makeup of the team serves both of these objectives.

Consider the Class

Use as an initial example the most common kind of workplace investigation issue – concerns that a male employee has engaged in inappropriate conduct of a sexual nature towards a female employee. Enlightened male investigators might want to think that all employees are comfortable talking to them, and hopefully that is often the case. There can be little question, though, that a female employee will most often be more comfortable opening up about inappropriate workplace behavior to another female employee.

The next consideration is how, even if the employer responds promptly and appropriately and effectively, things will play out in litigation or other dispute resolution context. The employee, in this example, claims discrimination on the basis of her sex. It is just too easy for the plaintiff’s lawyer to call the investigation process into question if all of the key players were on the same side of the “fence” as the alleged wrongdoing employee. The great majority of the time the employer will be better positioned in court if one of its witnesses is a female investigator.

Cover Yourself

The same is often true in other discrimination settings. On the information gathering front, will not a member of a protected class likely be able to elicit more information from an aggrieved party in that class? However, even if you disagree with that characterization in specific situations, rest assured that the employee’s lawyer will try to use against the company in court the failure to include somebody with demonstrable sensitivity to the unique concerns of the aggrieved party.

Consider Experience and Skill

Certainly there are no quotas or hard and fast rules for picking an investigator who shares traits with the complaining party. Indeed, an otherwise unqualified investigator chosen solely because of class membership may smack of insincere tokenism, not only to the employee being interviewed and colleagues observing how the company handles the issue, but also to the judge and jury.

It should go without saying that every investigator should have appropriate training and experience to enable them to listen thoroughly, ask good follow up questions, and generally be viewed as objective and trustworthy by all parties involved. Further, the investigator should be viewed as a potential witness in a court case, and therefore be able to speak clearly, succinctly, and confidently.

Assemble a Balanced Team

At the end of the day, it is important at all stages of the investigation and the events that can result from it that the team be perceived as balanced in all senses of the word – by the complaining party, by the alleged wrongdoer, by other employees who are watching to see how the company responds, and by third party decision makers who may pass judgment on how the company responds. There is no formula for best demonstrating that balance, but the reality is that the “census characteristics” of the investigators are a critical consideration.