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Assessing creditability during the early stages of an employee's complaint of unlawful discrimination poses many challenges for human resource officials and equal employment opportunity counselors, but one thing is clear: investigators should believe the victim's allegations are true until an investigation proves otherwise, a panel of Equal Employment Opportunity Commission judges said at a workshop Sept. 12.
The investigator should believe in the person's complaint and listen to the story critically, EEOC Administrative Judge Richard W. Furcolo told participants at the workshop, sponsored by the Equal Employment Opportunity Commission's Training Institute and the agency's Washington, D.C., field office.
“The key is to treat the victim like a victim the moment he or she claims unlawful employment discrimination,” Furcolo said. Nevertheless, he added, “you want to get as much information as you possibly can, because the devil is in the details.”
In the case of a workplace harassment complaint, Furcolo said, investigators need to ask specific questions during the preliminary stages of the investigation, so they will have access to relevant information as the investigation goes forward.
“Be thorough in your investigation,” Furcolo said. “Bookend the complainant's story of harassment to make sure you have all of the information and facts, so that there is nothing left out.” If there is ongoing harassment, he added, “encourage the victim to start keeping a journal of the incidents in terms of what happened and what was said, because you will need that as evidence.”
Many cases “rise and fall on the quantum of evidence” and the totality of the circumstances, Furcolo said.
To assess creditability, investigators should perform their fact-finding duties as a litigator conducts a deposition. “You want to establish all of the relevant factors” and determine who are the key players involved in the complaint, he said.
“We see many harassment cases that do not go to a hearing simply because the creditability of the parties is an issue,” Furcolo said. “There are no hard and fast rules for assessing creditability.”
“Be thorough in your investigation,” EEOC Administrative Judge Richard W. Furcolo said. “Bookend the complainant's story of harassment to make sure you have all of the information and facts, so that there is nothing left out.”
EEOC Administrative Judge Richard E. Schneider said cases don't necessarily turn on creditability. They could also be affected by whether the alleged behavior has risen to the level of an illegal action.
Furcolo added that “when a complaint comes in and goes to litigation, it becomes a legal analysis as to whether or not a harassment charge is sustainable under the law.”
When asked whether an EEOC administrative judge would consider the admission of polygraph results in a “he said, she said” harassment complaint, Furcolo and Schneider had slightly different views.
“A polygraph is hearsay. I would be inclined not to admit it,” Schneider said. He noted that during an administrative hearing, the complainant and the alleged harasser are both subject to cross-examination and credibility determinations. “That is what the judge is for,” he added.
Any polygraph results, as additional or corroborative information that lends credence toward the person's allegation of harassment, probably will come in as the judge assesses the merits of the case, Furcolo said. In an administrative tribunal, where rules and procedures are somewhat relaxed, “I could see where a polygraph examination may have some viability, but it may be of limited weight, because the complainant … would be subject to cross-examination,” Furcolo added.
However, Furcolo said he would have to research the issue further before allowing the polygraph results as admissible evidence in an administrative proceeding, realizing that there may be many “evidentiary concerns from prohibiting the results to come into evidence.”
Furcolo said some employers argue successfully that they are not liable for harassment because the employee failed to take advantage of the employer's protocol of preventing and correcting unlawful discrimination. For example, he said, an employee may decide after making a formal complaint that he or she no longer wants to participate in the investigation, thus failing to take advantage of the employer's preventative or corrective opportunities. “That's a defense we see asserted by employers,” Furcolo said, citing the U.S. Court of Appeals for the Tenth Circuit's recent decision in Helm v. Kansas(62 BTM 293, 9/13/11).
In that case, the court found that the plaintiff “failed to reasonably take advantage of the protocol that was available to her,” Furcolo said.
“When people come in to talk to you about unlawful employment discrimination, they need to understand your duty as an investigator and the defenses the employer can assert,” Furcolo said. The employee needs to know that the company has a protocol to prevent and correct unlawful discrimination and they need to avail themselves of the process, he added.
By Lydell Bridgeford
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