Workplace Investigations

Employers in Massachusetts have a duty to investigate an employee’s concerns of workplace discrimination or sexual harassment. Where appropriate, employers must also take adequate, remedial measures designed to end the unlawful conduct. In College-Town v. MCAD, the Massachusetts Supreme Judicial Court made clear that an employer who is aware of workplace misconduct prohibited under the Fair Employment Practices Act yet fails to take adequate remedial action violates M.G.L. c. 151B, §4.

Unfortunately, many employers do not take this duty seriously. Employers, for example, sometimes engage in sham investigations with a pre-conceived result in mind designed to ultimately limit the company’s liability rather than address the employee’s legitimate concerns. A company often shows its hand through the individual it selects to perform the investigation. Companies, for instance, may hire an outside lawyer to act as a so-called “neutral” investigator, without disclosing the fact that the same lawyer (or his or her firm) defended the company in prior discrimination lawsuits. Even without having represented the company in the past, an investigator who dedicates a significant portion of his or her practice to defending employment suits may bring a certain mindset to the investigation – perhaps one that is sympathetic to the company and not truly neutral.

The following questions can be helpful in understanding an investigator’s agenda:

• Did the investigator treat you with disrespect (e.g., rolling eyes, raising voice, aggressive manner)?

• Has the investigator pre-judged your allegations in the midst of the investigation. (e.g., “I don’t believe you,” “This seems out of character for the person you have accused,” “Such allegations are usually difficult to prove”)?

• Did the investigator dismiss your attempts to furnish information supporting your concerns, including the names of witnesses? (e.g., “That’s not relevant,” “I’ll decide who should be interviewed,” “You need to just answer my questions”)?

Such tactics can be indicative of a biased investigator. In general, it is best to document and report such issues as soon as they arise.

Overall, investigations must be fair and thorough. Refusing to interview key witnesses or interviewing witnesses in the presence of company management or the accused hinders the collection of relevant information. Failing to impose discipline calculated to end the harassment or discrimination where credible evidence is found to support an employee’s concerns likewise pays short shrift to M.G.L. c. 151B’s requirements. As the Massachusetts Commission Against Discrimination (MCAD) has observed, an employer’s obligations also include maintaining well-publicized anti-discrimination and anti-harassment policies, as well as producing evidence that managers and supervisors received adequate training on how to identify and respond to a harassment or discrimination complaint.

Investigations can escalate quickly and sometimes yield unexpected results. Before reporting discrimination or sexual harassment concerns, employees are well-advised to consult with an employment attorney to ensure a full understanding of the mutual obligations involved in this process.

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