- Two female bank employees fired for violating a vault-opening policy were unable to prove their Title VII of the Civil Rights Act of 1964 sex bias claims (McLaughlin v. Fifth Third Bank, Inc., No. 18-5712 (6th Cir. May 24, 2019)). The women admitted to violating the policy and were caught doing so on a security video.
- The plaintiffs alleged three male employees also violated the policy but were given performance counseling rather than being terminated. However, two of the men denied violating the policy and were not captured on video, according to the court. The third was bullied into the violation by a supervisor and refused to do it again; he was allowed to keep his job because of these extenuating circumstances, court documents said.
- The bank conducted what the 6th U.S. Circuit Court of Appeals called "an extensive internal investigation" that included employee interviews and reviews of two months' worth of security videos. Because the bank had an "honest belief" that the factual differences justified its disciplinary decisions, the 6th Circuit upheld a district court's ruling of summary judgment in favor of the bank.
As this case shows, even seemingly discriminatory decisions can be justified if they are supported by a fair, thorough investigation. In general, most investigations can be conducted internally by HR, including allegations of discrimination, harassment, retaliation or other illegal activity, Pavneet Singh Uppal and Shayna Balch, both partners at Fisher Phillips LLP, told HR Dive at a 2018 conference.
A good-faith investigation must be fair and thorough. Balch recommended having a second person present during interviews who can serve as both witness and notetaker. Because investigation notes can be discoverable in the event of a lawsuit, Balch cautioned against making conclusory-sounding statements, such as that someone "was harassed."
Many HR professionals worry about their ability to separate fact from fiction in a "he said, she said" scenario, and it's a valid concern: Using supposed lie detection "techniques" are useful maybe half the time, Michael Wade Johnson, CEO of Clear Law Institute, previously told HR Dive. In order to increase the odds, Johnson recommended keeping an eye out for suspiciously long, well-prepared answers; a lack of concrete details; use of the passive voice (e.g., "mistakes were made" vs. "I made a mistake"); and attempts at conversational redirection.
One problem that can occur during this process is when parties to an investigation request confidentiality. This is a common request, but it is not necessarily something HR can guarantee, William R. Horowitz, employment counsel at Drinker Biddle & Rath, wrote in an op-ed for HR Dive. Reassuring interviewees that retaliation will not be tolerated may help to set minds at ease and facilitate honest disclosures, Horowitz said.