Internal/Human Resources Investigations

If you’ve filed an internal complaint at your company claiming racially-based mistreatment, you want to stay on top of any investigation that your employer tells you it is conducting. Some employers will take their time conducting investigations into such matters, but you should speak with your employer regarding the timing of the investigation because it’s best for them to speak to witnesses and other coworkers, when information and events are still fresh in everyone’s head.

If you don’t hear back from your company’s lead HR investigator during the time frame outlined in corporate procedures or in some other time frame that you’ve agreed upon, you should formally follow-up with your employer to get a status update on the investigation. Make this request in writing.

If you ever have to request an internal investigation, you want to make sure everything is documented. So, don’t ever follow-up with people by phone and, if you do, follow-up with an email stating everything discussed and agreed upon on the call.

If after the HR investigation, there is a finding that no harassment, discrimination or retaliation took place and you are convinced that one or all of these offenses took place, you should begin the appeals process at your company per the guidelines outlined in the company’s personnel manual.

Only you can answer the question of whether or not you are ready to pursue a racially-based workplace complaint and whether or not the issue warrants additional review and investigation from an outside source.

If you are still unsatisfied with the findings of the in-house investigation, look into alternative methods to deal with your issues, such as filing a complaint with the EEOC or your state’s Office of Human Rights, which is part of the Human Relations Commission. If you file a complaint with the Office of Human Rights, your case will be jointly filed with the EEOC and you will also receive an EEOC case number.

To summarize, when you’re requesting an investigation you should:

--Request the investigation in writing;

--Save multiple hard copies of the request, including supporting documentation;

--Know the procedures that govern the investigation;

--Know the expected timing of the investigation;

--Present evidence strategically;

--Present a witness list;

--File an appeal, if you don’t agree with the decision;

--Find alternative resources, if your situation warrants it (e.g., outside/external
investigation, legal counsel, etc.); and

--Keep your mouth shut during the investigation—remember that you are surrounded by liars and opportunists in the workplace.

Conflicts of Interest in Internal Investigations

If you file an internal investigation, alleging racially-based misconduct on your job, it’s important that you know who is involved in the investigation and that you are watchful for people who may have a conflict of interest.

You want to make sure the investigation is going to be fair and impartial. So, you should do everything possible to make sure that the investigation isn't easily stacked in your employer’s favor. Therefore, it’s okay to question whether certain people can be objective and to express your concerns in writing. You should do this before any investigation begins.

For instance, if you are having a problem with a coworker in your department, you would be right to be concerned if one of the investigators is your mutual boss/executive manager who is buddies with or favors your coworker. You would be right in believing that this individual’s input could taint the investigation in your coworker’s favor. You should find out what kind of input this person will be asked to provide and voice your concerns if the input would be prejudicial.

Do not make it easy for people to execute a campaign against you. If you think a person will take the opportunity to discredit your case, put your concerns in writing and sit down with Human Resources to see if there is a way to have this person remove themselves from the investigation.

If Human Resources insists this person participate in the process, make sure a copy of your written protest against their participation remains in the investigatory record. This might be necessary documentation for an appeal.

In other words, don’t let them pretend you didn’t voice concerns about personal biases early in the process. Make sure you document any complaints about possible conflicts of interest, that you track who you complained to, and that you have a list of their responses.

The Dos and Don'ts of Internal Investigations

When you’re requesting an official investigation at work (via your department head, HR, etc.) …

DO:

· Request the formal investigation in writing/via email (memo);

· Save multiple hard copies of the request, including any supporting documentation that was forwarded to HR;

· Know the procedures that govern the investigation;

· Know the expected timing of the investigation;

· Present evidence strategically. Only submit what is vitally necessary to prove your case. Submit the evidence in some logical order for ease of understanding the issue;

· Label your evidence with the relevance of each item submitted for review by the investigator;

· Present a witness list;

· File an appeal, if you don’t agree with the decision;

· Find alternative resources, if your situation warrants it (e.g., outside/external investigation, legal counsel, etc.); and

· Keep your mouth shut during the investigation--remember that you are surrounded by liars and opportunists in the workplace.


DON’T:

· Allow people with conflicts of interest to be an integral part of the investigation. Express why you are concerned with a person’s participation in the investigation and ask for alternates to replace that individual;

· Inform your chain-of-command before filing a complaint, if your chain-of-command is the party that is bullying, discriminating or retaliating against you;

· Accept a determination you don’t agree with--investigate your options, such as filing an appeal or filing a complaint with EEOC; and

· Give your employer ammunition to use against you. For example:

-- make sure you report to work early or on time;
-- don’t miss deadlines;
-- be professional at all times;
-- double-check your work;
-- don’t take the bait (e.g., people will try to antagonize you to get an angry response that can be used against you later);
-- document everything; and
-- don’t keep evidence at work where it can be found and destroyed.

Documenting a Rude and Abusive Coworker or Supervisor

There are some people in the workplace, who become absolute nightmares whenever they are stressed out by deadlines or other work or professional issues. When they’re not stressed out and frustrated, they may be great to work with. But, when they are feeling any kind of pressure, they may become demanding, demeaning, bullying, etc. in how they interact with everyone around them. These people make it seem as though you are working with a Jekyll and Hyde type character. While these people are difficult to work with, at least they are only problematic on a part-time basis.

Unfortunately, there are some people in the workplace, who are venomous and nasty all of the time. They like to be sharp-tongued, sarcastic and offensive just for the hell of abusing their coworkers or subordinates. If they are racist, then they are likely going out of their way to abuse members of other races.

Regardless of whether or not you are dealing with part-time or full-time abuse at work, you have to make sure to document everything that’s going on. Even if you want to try to be the so-called bigger person in the situation or you are fearful of making a complaint for fear of looking like a whiner or out of fear of retaliation, you may change your mind at some point and want to make an official complaint to a supervisor or to Human Resources.

Once you know you are dealing with someone who intentionally or unintentionally shows they have no self-control, self-censorship, compassion, empathy or professionalism, you should immediately begin documenting this individual—even if it is a supervisor or someone else in authority. Remember, as you are documenting the individual, you should also be making them aware that you find their behavior to be rude and hostile and you should inform them that their method of communication does not work well with you. Ask if you can meet face-to-face to talk about how you can work better together and to come to some understanding. But, again, you should be documenting the person despite any efforts to correct the problem without managerial intervention.

You can do this by creating a log/tracking sheet to document any incidents of abusive, hostile, harassing or retaliatory behavior from the person. This might include threats to your job or threats of physical violence, having papers or other items thrown at you, being subjecting to name-calling or racial epithets, being screamed at privately or in front of coworkers, being given menial assignments, etc. All of this negative and potentially illegal behavior should be tracked.

On top of logging incidents with this person, you should also keep a list of witnesses. These witnesses can confirm your version of events to management or Human Resources. This will provide you with credibility about your complaints and will demonstrate to management that there is an issue that needs to be addressed. When compiling a list of witnesses, also keep track of the specific incidences that each person witnessed. By tracking witnesses with incidences, you will diminish any confusion at a later time and you will make it easier for an internal or external investigator to proceed with their questioning and to come to an understanding of what’s been transpiring at work.

You must also keep electronic and hard copies of rude, offensive, and hostile emails or other written correspondence with this person. Save the electronic files and forward them to your personal email accounts online (e.g., an AOL or Yahoo! or Google email account). You can also forward rude and offensive emails to the individual’s supervisor or manager raising the issue about the lack of professionalism being displayed and pointing out the hostile/harassing tone of the communication. Ask for the supervisor to address the issue with their subordinate. Make sure they understand that you will make a complaint to Human Resources, if nothing is done.

Another thing you can do is to save rude, offensive, and hostile voice mail messages. Never delete these messages. Better yet, use a tape recorder to record the message, in case someone else inadvertently deletes the message for you. You would not believe how corporate spies will rummage through your office on company orders. I’ve had it done to me and have seen this done to a coworker. Files in my office were moved, items on my desk were examined, contents of my drawers weren’t as I left them, etc. Always assume that someone might destroy your evidence and consider ways to preserve any key evidence you might need at a later time.

If the person is refusing to correct their behavior, despite your requests, seek out their supervisor and have a discussion—if you haven’t already done so. Present your evidence and state unequivocally that you won’t tolerate the abuse any longer. Ask the person what they plan to put an end to the abuse. If after a short time, nothing changes, contact Human Resources—or you can do this jointly with speaking to the supervisor. If your supervisor or manager is the perpetrator of the abuse, contact Human Resources or your supervisor’s supervisor/manager. If your supervisor is your abuser, you don’t have to notify your supervisor about your official complaint because the law recognizes the conflict with that scenario and does not force employees to report abuse and harassment to the abuser and harasser.

The nuclear option is reporting potentially illegal abuse to the EEOC, the Office of Human Rights or some other fair practice employment agency.

Remember, you do not have to subject yourself to abuse and harassment at work. Regardless of how well you are being paid, a hostile work environment is NEVER part of the deal!

Always Maintain a High Level of Credibility!

Most people, who’ve become a target at work, can tell some real horror stories about how far a supervisor, executive or a company—as a whole—was willing to go in order to deny them a promotion, set them up for termination, etc.

They can also tell you stories about how bold many workers at a company are and how they often eagerly participate in activities with a supervisor or on behalf of the company. The level of complicity is staggering, when it comes to the networks that are built with the sole purpose of getting rid of an employee, trying to get the company out of legal jeopardy, etc.

I worked at a company that was found guilty of retaliating against a Black manager. The company was found guilty of illegal behavior that included creating false documentation (e.g., falsifying timesheets in a malicious attempt to show the manager had been absent without official leave). This employer also went as far as creating documentation of fabricated and malicious performance deficiencies that did not exist. All of this false documentation served the sole purpose of trying to create a pretext (read: a legitimate reason) for why supervisors, HR staff, and others were targeting this Black manager. Luckily, it didn’t work.

But, sometimes it does.

Regardless of whatever kind of shady activities any coworker, supervisor, manager, director, executive, etc. is engaging in at work, it’s up to you to maintain the high road by remaining truthful about your situation on the job.

Let the liars lie. Let the schemers scheme. You can’t control anyone, but yourself. So, when people are lying on you and scheming against you, your best bet is to be very observant, to keep your ears open, and to document everything.

Here’s the deal. Any internal or external investigator or an attorney is going to try to get to the truth of what has taken place at a company. Part of finding the truth will include phone interviews, face-to-face interviews, discussions with witnesses, an examination of evidence (charts, instructions, emails, memos, etc.) and other factors. When everything is said and done, someone will be determined to be truthful and someone’s allegations will be found to be without merit.

Don’t let that person be you!

When people are lying about you and destroying your reputation and career at work, it is tempting to try to hit back at them as hard as they are coming at you. But, you can’t sink to the level of dirty water. Think about it…

Unless you are working at some little rinky-dink company, your employer is likely going to have a lot of manpower and other resources to commit to bringing you down, slandering your reputation, setting you up for failure to justify negative employment actions (including termination), and to pretty much do whatever is ordered by those in authority.

You don’t and won’t have those kinds of resources and support. So, the best thing you can do is to be aware of your rights, to document everything, to keep lists of witnesses to back up your story, to tape record conversations, to save important emails, memos, instructions, offensive phone messages, etc. as a way to prove that you are being subjected to illegal mistreatment.

Never submit to the temptation to stretch the truth or outright lie. One fabrication revealed by a 3rd party (investigator or attorney) will shatter your credibility and make you look like a flat out liar and troublemaker. Lies can turn the case in favor of your employer, who might have been found guilty of misconduct...if you’d stuck to the facts!

It’s hard enough to get people to believe race-based complaints. So, do not give your employer ammunition and don’t set yourself up to be disbelieved based on a white lie or a major lie. Instead, focus on revealing the lies being told by a coworker, supervisor or anyone else at your job, who is engaging in a cover-up or who is targeting you solely based on your race. Put your energy into refuting your employer’s claims that nothing happened or that your performance, attitude or behaviors somehow justified negative employment actions.

Also, remember that, when it comes to race, there are some White people who will give another White person the benefit of the doubt, even in the face of serious evidence of race-based misconduct. There are also some Black people, who do not believe that racism exists--except in the minds of race-baiting Blacks, who they think like to be vicitms. You don't know who you will encounter and what perspective they are bringing to the table.

Assuming a 3rd party investigating your complaint is not the most open-minded person on the planet, your job is to make it hard for that person to ignore the facts and to ignore the truth of what has happened at your job. If a 3rd party says that they have found no evidence of race-based discrimination or harassment, you can file an appeal (usually for an internal or external investigation). During the appeal, it may be revelaed that errors or biases wrongly impacted the findings in your case. But, again, your truthfulness will go a long way to showing your case has merit.

Remember: Keep your eyes on the prize. Stay strong. And, speak truth to power!

Bona Fide Occupation Qualification (BFOQ)

A bona fide occupation qualification (BFOQ) is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees–qualities that, when considered, in other contexts would be considered discriminatory and thus violating civil rights employment law. In other words, a BFOQ can be the justification an employer provides after being accused of discrimination.

An example of a BFOQ is that Chinese restaurants can argue they have a legitimate reason for hiring only Asians to work in their restaurants. Other examples can be found in the mandatory retirement ages for bus drivers and airline pilots, which are required for safety reasons.

It is important to know this term because you may come across it, after confronting an employer about a potentially discriminatory practice. If your employer does claim that it is not discriminating against you because there is a BFOQ related to your job, you can question that defense because it is the employer’s responsibility to prove BFOQs are "reasonably necessary" and that there is no reasonable alternative with a lesser impact on the protected classes (e.g., minorities, women, the disabled, etc.).

Source: en.wikipedia.org/wiki/Bona_fide_occupational_requirement

Fight Your Employer's Delay Game!

If you were forced to file an internal complaint against a coworker or supervisor alleging race-based discrimination, harassment, retaliation, etc., you probably learned a thing or two about how an employer (read: The Human Resources Department) can drag out an internal investigation.

Instead of engaging in a prompt and serious investigation of the facts, many an HR team will pursue a strategy of delay and then deny. They will prolong any investigation, hoping the employee will just let the issue die. Or, perhaps they will use the delay to retaliate against the employee, with the hopes of forcing them to resign (constructive termination) before the investigation is complete. Sometimes, the delay is used to give the false assurance that the investigation is being conducted thoroughly — leaving no stone unturned. The reality is that the company may be just using that time to come up with a counter defense to all of an employee’s arguments and evidence that validate illegal mistreatment in the workplace.

After all the hemming and hawing, these delayed investigations sometimes end up with the internal investigating team telling the complaining employee that they couldn’t find any evidence of wrongdoing on anyone’s part. Or, if HR acknowledges wrongdoing, HR may downplay the impact of any offending and illegal actions that the victim was subjected to. This may be followed by the employer promising the complaining employee that the offending employee or supervisor will be “dealt with.” In other words, the complaining employee may be promised that corrective steps will be taken to rectify the race-based harassment, etc.

But, what happens, when an employee is promised that misconduct will be rectified, but the employer does nothing to correct the behavior of the offending employee? And, is there something else afoot, when it comes to these delays in internal investigations?

When it comes to filing a complaint with an external agency (e.g., The Office of Human Rights or the EEOC), employees only have a certain number of days—after a race-based incident—to file a complaint. For instance, an employee may have 90 or 180 days to file a complaint with an outside agency.

So, the reality is that some companies will try to delay any internal investigation with the hopes of causing an employee to miss deadlines with outside investigatory agencies. If an employee files a complaint and it is accepted based on the fraudulent delay of the employer, the employer may try to argue that the complainant missed the deadline and, therefore, the entire investigation/complaint should be dismissed on that basis.

However, according to legal decisions an employer can’t engage in acts or omissions that serve to lull a complaining employee into foregoing a prompt attempt to vindicate his/her rights. Specifically:

“If an employer actively misleads an employee into missing the deadline for filing a charge by dragging out its investigation and assuring the employee that the harassment will be rectified, then the employer will be “equitably estopped” from challenging the delay.” (Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998)

Also…

“An employer’s affirmatively misleading statements that a grievance will be resolved in the employee’s favor can establish an equitable estoppel.” (Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir. 1992)

So, if your employer has engaged in behavior that caused you to miss a complaint filing deadline with an outside agency, you can argue that you missed the deadline because you were misled and delayed by the intentionally manipulative actions of your employer. If the employer tries to get the complaint thrown out, based on the missed deadline, there is legal precedent for overruling that argument.

Questions Investigators Will Ask About Race-Based Complaints

Here's a sampling of some the questions you will have to answer, during an internal or external investigation. PLEASE NOTE: If your company is trying to cover-up what really happened to you, HR will likely have far fewer questions for you. An external investigation should be extremely detailed and thorough. Now for the questions:

--Who is bullying, intimidating, discriminating or retaliating against you?

--What specifically happened?

--What comments were made?

--What actions were taken?

--Was this a one-time incident?

--What day and time did this occur?

-- If not, how many times did this happen? (Describe each situation)

--Is it still continuing? If so, what was the most recent incident?

--What was the impact? (State the professional and personal consequences that occurred as a result of the actions taken against you)

Think about tangible employment actions, which are any actions taken by employers or their agents that impact hiring, firing, promotions, transfers, disability etc.

--Describe how certain actions led to you being denied a promotion or terminated from your job, etc.

--Are you now being subjected to an offensive work environment marked by intimidation, harassment, bullying, disparate/unequal treatment, etc.? If so, describe these conditions.

--How did you respond to the situation?

--Who did you speak to/report the incident to? List dates, times, and responses.

--What specifically did you tell them? Describe fully—this will help you keep track of what authority figures knew and when they knew it.

--Did you correspond with your superiors or Human Resources in writing? If so, list names, dates of correspondence, and responses. (Note: If you participate in face-to-face meetings, you should always follow-up the meetings with a quick email in order to create an undeniable record of what transpired.)

--Did you address the individual who is the perpetrator of this incident? What was their response? Did you come to a solution?

--Who are your witnesses? List their names, titles, and the dates of incidences they observed.

--Who else has been harassed, etc. by this person? List their names and any information that is available regarding their harassment, including dates or the approximate time frame of the mistreatment and illegal activities.

--Does the perpetrator have any outstanding complaints against him/her? List specifics, if available.

--How would you like to resolve this issue?

--What would you like to happen? (Your dream scenario)

--What is the minimum that you would find as an acceptable solution to resolve the problem? For instance, you may only want an apology from the perpetrator or you may want an apology, restitution of your salary, and the perpetrator to be placed in training that is appropriate for the offense they committed (e.g., diversity training).