In the world of employment law, we often encounter some truly bizarre ideas. Recently, a peculiar notion was presented suggesting that investigators should avoid making conclusions of fact beyond direct evidence and should refrain from credibility assessments altogether.
While these ideas might seem tempting in their simplicity, they unfortunately miss the mark and fail to align with established best practices, as exemplified by the EEOC’s recent guidance document and federal EEO investigations training.
Let’s break down why these ideas are about as useful as a screen door on a submarine.
The “Direct Evidence Only” Myth
The EEOC April 2024 guidance (jump to the paragraph that starts with footnote 340) clearly states that investigators must consider the totality of the circumstances when assessing harassment claims, including both direct and circumstantial evidence. In fact, the guidance emphasizes the importance that they “arrive at a reasonably fair estimate of truth,” which often necessitates drawing inferences from the available evidence.
The “No Credibility Assessments” Fallacy
In the same paragraph, the EEOC’s guidance stresses the importance of investigators being well-trained in evaluating credibility. This is because determining whether harassment occurred often involves resolving conflicting accounts and making judgments about the credibility of witnesses.
More Than “Direct Evidence”: A Practical Perspective
Workplace investigations are not jigsaw puzzles where every piece fits neatly into place. They are complex processes that require investigators to analyze evidence, draw inferences, and make conclusions based on the available information.
By limiting investigators to direct evidence only and prohibiting credibility assessments, we would be hindering their ability to conduct thorough and impartial investigations. More specifically, the EEOC guides that it is “necessary for the investigator to make credibility assessments to determine whether the alleged harassment in fact occurred….”
Accordingly, whoever conducts the investigation should be well-trained in the skills required for interviewing witnesses and evaluating credibility.” To be clear, no worthwhile investigator is going to rely on things like body language and lie detector tests to make assessments, but that isn’t necessary either.
Stick to the Best Practices
You want to empower investigators to do their job effectively. Why? Because a well-conducted investigation is the foundation for a fair and just workplace.
How do you empower investigators? By letting them stick to the best practices outlined in the EEOC’s guidance or articulated and taught by the investigative industry’s trade group, AWI.
What about Recent Politics?
There is a lot to say here, but on this issue, there is no change.
As always, this isn’t legal advice, just helpful info. If you’re facing a real Title VII issue, don’t guess. Talk to us.
