You’re sitting in your office on a Tuesday morning, coffee still warm, when HR walks in with that look. You know the one. An employee has filed a discrimination complaint, and their smoking gun evidence is essentially: “I feel treated badly, and I’m in a protected class, so… what else could it be?”
Now you have a complaint that you are legally required to respond to, but the evidence is some sort of backwards logic behind an invisibility shield.
Welcome to one of employment law’s most frustrating puzzles. Here at Treaty Oak, we’ve seen this scenario play out hundreds of times.
The good news? There’s a strategic way to handle these claims that protects your business while still respecting employee rights.
First, let’s talk about where assumption-based claims come from.
The Psychology Behind Assumption-Based Complaints
Let’s be honest about human nature for a second.
When employees are feeling negative about work or facing performance issues, it’s way easier to point fingers than look in the mirror. The “what else could it be?” mentality stems from a cognitive bias where correlation gets confused with causation.
An employee who happens to be in a protected class experiences workplace friction and assumes discrimination without considering other factors like:
- Performance gaps that need addressing
- Communication breakdowns with supervisors
- Workplace culture mismatches
- Personal accountability issues
- Normal business decisions that affect everyone
Unfortunately, research shows that workers who report discrimination through formal complaint mechanisms often find that their employer seeks to discredit them and fails to investigate complaints promptly and thoroughly. As you might imagine, this tends to worsen that sensation of being discriminated against.
This is not to say that every complaint has merit, but you have to be very careful, because assumption-based claims can quickly turn into something serious.
How?
Why These Claims Are Both Dangerous and Defensible
Here’s where it gets tricky. Under the U.S. Supreme Court’s recent Muldrow decision, Title VII prohibits discriminating against an individual with respect to the terms or conditions of employment because of a protected characteristic, and does not require that a plaintiff establish the change was “significant,” “serious,” “substantial,” or any other heightened burden.
Simply stated, Muldrow made it easier to prove discrimination, and this is not an issue changed by political winds. But here’s the silver lining: proper investigation and documentation can still protect you.
The Association of Workplace Investigators’ (AWI) Approach
AWI emphasizes that workplace investigations should follow current industry best practices, including recognizing potential biases and taking corrective action, communicating with the employer throughout the investigation, and tailoring interview questions based on what witnesses may know.
When facing a “what else could it be?” complaint, AWI trained investigators recommend:
- Documenting the timeline objectively – What specific actions triggered the complaint?
- Interviewing witnesses separately – Get multiple perspectives without leading questions
- Reviewing performance records – Look for patterns that predate any protected class awareness
- Examining comparable situations – How were similar issues handled with other employees?
This analysis is a bit tricky, and the largest PEOs often do it wrong, as they avoid incorporating performance metrics in discrimination investigations.
Your Action Plan When Assumptions Meet Reality
Step 1: Don’t Panic, Don’t Dismiss
Every complaint deserves investigation, even speculation-fueled ones. Title VII makes it unlawful for employers to retaliate against employees who make charges, testify, assist, or participate in any manner in an investigation, proceeding, or hearing. Handle this professionally.
Step 2: Conduct a Thorough Investigation
Credentialed workplace investigators should communicate with the employer throughout the investigation so that everyone is in alignment on scope and procedures, recognizes the importance of tailoring interview questions based on what a witness may know, and recognizes potential biases so they can take corrective action.
Step 3: Focus on Facts, Not Feelings
Document specific behaviors, dates, witnesses, and business justifications. Assumptions crumble under factual scrutiny.
Step 4: Consider Alternative Explanations
Was this employee struggling with performance before the alleged discrimination? Or is discrimination causing their poor performacnce? Are there documented coaching conversations? Did other employees face similar consequences for similar actions?
The Business Case for Getting This Right
How important is this? Let’s talk numbers.
The EEOC filed 110 employment discrimination lawsuits in fiscal year 2024, including 48 cases under the Americans with Disabilities Act and over 40 cases alleging retaliation. Each case costs businesses an average of six figures in legal fees alone, not counting settlements or judgments.
But here’s the kicker: properly investigated and documented cases often result in successful defense verdicts. Employees who can’t prove their assumptions with facts typically don’t prevail at trial.
In other words, it pays to handle these types of claims the right way.
Red Flags That Signal Assumption-Based Claims
Watch for these warning signs in discrimination complaints:
- Vague timelines (“It’s been happening for a while”)
- Lack of specific incidents (“It’s just a feeling I get”)
- Post hoc reasoning (“After I told them I was [protected class], things changed”)
- Inability to identify witnesses (“Everyone knows, but no one will say anything”)
- Circular logic (“Why else would this happen to me?”)
Turning Legal Headaches into Business Advantages
Here’s where we shift from defense to offense. A well-handled assumption-based complaint becomes a teaching moment for your entire organization. It shows other employees that you take concerns seriously, while demonstrating that unfounded accusations won’t derail legitimate business decisions.
This approach often results in:
- Improved workplace communication
- Better documentation practices
- Stronger management training programs
- Reduced frivolous complaints over time
Don’t Let Speculation Negatively Impact Your Bottom Line
“What else could it be?” isn’t evidence. It’s speculation. But in today’s legal environment, speculation can still cost you money if not handled properly. The key is responding professionally, investigating thoroughly, and documenting meticulously.
Remember: Title VII protects employees from discrimination based on race, color, religion, sex, and national origin, and it covers the full spectrum of employment decisions. However, it doesn’t require employers to accept unfounded assumptions as fact.
What This Means for Your Business
Every assumption-based discrimination complaint is an opportunity. An opportunity to demonstrate your commitment to fair workplace practices, to strengthen your documentation procedures, and to separate legitimate concerns from employee accountability issues.
The businesses that thrive in this environment aren’t the ones that avoid all complaints. They’re the ones that handle complaints so professionally and thoroughly that even unsuccessful complainants respect the process.
Not sure you’re quite ready for that challenge? Most businesses aren’t. But we can help.
