An improper investigation might involve such factors as:2

• Lack of a formal investigation plan.
• Lack of promptness.
• Interviewing the complainant and the accused at the same time rather than separately.
• Not interviewing any other individuals, such as coworkers, who might provide insights into either party’s credibility or conduct.
• Not using an impartial, trained investigator or human resources employee to conduct the investigation.
• Unsupported documentation.
• Coercion into signing inaccurate statements about the harassment or other coercion, intimidation or threats.

• Focus on gathering information during the investigation process. Even if the investigation comes down to just conflicting accounts between the complainant and respondent, you must reach a conclusion. Examine the objective evidence and assess credibility. As yourself, “In light of all the evidence, is it more likely than not that the person is telling the truth?”

At least one California court has noted that lack of a proper investigation can be evidence of retaliatory motive: “The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when [the employee] made his complaint.”3

In this case, a hospital fired an excellent, long-term employee soon after the employee reported harassment by a recent hire. The court, in a sharply worded footnote, pointed out that just because the accused and the complainant offer conflicting accounts does not relieve the employer of the responsibility to make a good faith decision.

1. Mendoza v. Western Medical Center Santa Ana, 222 Cal. App. 4th 1334 (2014)