How to Conduct a Workplace Investigation That Holds Up if You’re Sued

When an employee reports harassment, discrimination, retaliation or other misconduct, how you respond matters. A prompt, fair and well-documented investigation can help you fix problems before they grow. It can also become one of your strongest defenses if the matter turns into an agency charge or a lawsuit.



A rushed, one-sided or poorly documented investigation can do the opposite. It can be used as evidence that your company ignored a complaint or reached a decision it had already made. Here’s how to run an investigation that stands up to scrutiny.

Why the Investigation Itself Matters

In many employment cases, the question isn’t only whether misconduct happened. It’s also whether the employer responded reasonably once it knew about the problem. Courts and agencies such as the EEOC often look closely at:

• How quickly the employer acted
• Whether the investigator was neutral
• Whether both sides had a chance to be heard
• Whether the conclusions were supported by evidence
• What corrective action, if any, followed

An employer that can show a thorough, good-faith process is often in a much stronger position than one that can’t.

Step 1: Act Promptly

Start the investigation as soon as reasonably possible after receiving a complaint, even if the complaint seems minor or informal. Delays can allow conduct to continue, let evidence disappear and make it look like the company didn’t take the concern seriously.

If needed, take interim steps while the investigation is ongoing, such as adjusting schedules or reporting lines. Be careful that these steps don’t punish the employee who complained, since that can create a retaliation claim.

Step 2: Choose the Right Investigator

The investigator should be impartial and have no stake in the outcome. That usually means not using the accused person’s direct supervisor or someone with a close personal relationship to anyone involved.

Depending on how serious the allegations are and who is involved, you may use a trained HR professional, an outside investigator or legal counsel. When senior leaders are accused, or when litigation seems likely, an outside investigator often adds credibility.

Step 3: Plan the Investigation

Before you begin interviews, outline:

• The specific allegations being investigated
• The relevant policies
• The people you need to interview
• The documents and data you need to collect, such as emails, messages, schedules and video

Take steps to preserve relevant evidence right away, including electronic communications.

Step 4: Conduct Fair, Thorough Interviews

Interview the person who complained, the accused employee and any relevant witnesses. Good interview practices include:

• Asking open-ended, non-leading questions
• Giving the accused employee a full opportunity to respond
• Asking for any documents or other witnesses each person thinks are relevant
• Reminding everyone that retaliation is prohibited
• Asking participants to keep the matter as confidential as reasonably possible, while avoiding blanket confidentiality rules that may raise labor law concerns

Step 5: Document Everything

Clear documentation is what allows an investigation to hold up later. Keep records of:

• When and how the complaint was received
• Each interview, including the date, attendees and a summary of what was said
• Documents and evidence reviewed
• Steps taken and the reasons for them
• The final findings and the basis for each one

Notes should be factual and professional. Avoid opinions, speculation or comments you wouldn’t want a judge or jury to read.

Step 6: Reach a Reasoned Conclusion

Evaluate the evidence and decide whether the allegations are supported. In most workplace investigations, the standard is whether it’s more likely than not that the conduct occurred. Explain how you weighed credibility and conflicting accounts.

Not every investigation will reach a clear answer. That’s okay, as long as the process was fair and the reasoning is documented.

Step 7: Take Appropriate Action and Follow Up

If misconduct is confirmed, take corrective action that fits the severity of the conduct and is consistent with how you’ve handled similar situations in the past. Inconsistent discipline is a common source of discrimination claims.

Let the complaining employee and the accused employee know the investigation is complete, sharing an appropriate level of detail. Follow up afterward to make sure the conduct has stopped and that no retaliation has occurred.

For more on handling reports specifically, see our post on what employers are required to do after a harassment report.

Common Mistakes to Avoid

• Waiting too long to start
• Letting a biased or conflicted person investigate
• Deciding the outcome before gathering facts
• Skipping witnesses or evidence
• Failing to document the process
• Disciplining inconsistently
• Overlooking retaliation after the investigation ends

Frequently Asked Questions

Do we have to investigate if the employee asks us not to?
In many cases, yes. Once an employer knows about potential harassment or discrimination, it may still have an obligation to look into it, even if the employee asks the company not to act.

Should we use an outside investigator?
It depends on the situation. Outside investigators can be especially helpful when senior leaders are involved, when the allegations are serious or when litigation seems likely.

Can the investigation file be used in a lawsuit?
It may be. Investigation records can become evidence in an agency charge or lawsuit, which is why they should be accurate, factual and professional. Involving counsel early can help you understand how privilege may apply.

Talk to an Atlanta Employer Defense Attorney

A well-run investigation can protect your business, your employees and your reputation. Attorney Douglas H. Duerr of DHDuerr Law LLC has more than 35 years of experience advising employers and defending them against harassment, discrimination and wrongful termination claims. Call 404-777-3196 or contact us online to discuss your situation.

Disclaimer: This blog is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Every situation is different, so please speak with an attorney about your specific circumstances.