If you investigate workplace complaints, you are bound to encounter a case that boils down to “he said/she said.” In these investigations, the risk of getting it wrong can be great. Subjecting an employee to discipline or termination without sufficient proof of wrongdoing can affect employee morale as well as potentially lead to litigation. On the other hand, failing to act when an employee has filed a claim alleging wrongdoing can also lead to the same negative consequences. Ultimately, an investigator must focus on assessing credibility in a “he said/she said” case.
Before deciding that a complaint requires you to make a decision based solely on an assessment of the credibility of the complainant and the accused, be certain that you have conducted an exhaustive investigation that could uncover evidence in support of the allegations. This includes asking both parties if they have any supporting evidence. For example, did the complainant write down details of the incident in a journal or diary? Did he/she tell anyone else when the incident occurred? Are there any text messages or emails? If you have followed standard investigative procedures and have not uncovered any additional evidence to support the complainant’s allegations, then you must rely solely on an assessment of the credibility of both parties.
Tools for Assessing Credibility
- Check for unconscious bias before assessing credibility. First, you must check and discard any bias you may have toward either party. This includes a long list of known types of bias, including confirmation, affinity, age, and gender bias, just to name a few.
- EEOC Guidance. The EEOC has published some guidance on the issue of assessing credibility that may be useful. Factors to consider, according to the EEOC, include, but are not limited to, the following:
- Demeanor. Did the person appear to be telling the truth? This can be particularly tricky as we all tend to believe we can tell if someone is being truthful. While the demeanor of a witness should be considered, it is imperative not to make the false assumption that you can accurately “read” every witness.
- Inherent plausibility. Is the testimony believable on its face? Consider the facts and circumstances of the allegations. For example, if the allegations include repeated sexual remarks, is it highly unlikely that these remarks could have been made without a single witness hearing them? Conversely, does your investigation confirm that the incident in question could have occurred without supporting evidence or witnesses?
- A motive to falsify. Did the person have a reason to lie? Look for a history of animosity or other negative interactions between the complainant and the accused. Was the complainant in jeopardy of losing his/her job? Does the accused now stand to lose a lucrative position if the allegations are found to be true?
- Past record. Does the accused have a past record of similar behavior? Conversely, does the complainant have a history of making unsubstantiated complaints not involving the accused? If either is true, it can provide an important clue when assessing credibility.
While credibility is always a factor in an investigation, the pressure to get it right when assessing credibility in a “he said-she said” case can be immense. Using the tools outlined above will help you to stay focused and reach the right conclusions.
If you have additional questions or concerns regarding workplace investigations, contact the experienced workplace investigations team at Ablin Law by filling out our online contact form or by calling 312.288.2012.