Workplace Investigations: The Mistakes Employers Make That Create Liability

When an employee complains about harassment, discrimination, or misconduct, employers are supposed to investigate. A good-faith, thorough investigation can protect employers from liability. A botched investigation can become exhibit A in the lawsuit that follows.

Whether you're an employee wondering why your complaint went nowhere, or an employer trying to avoid litigation, understanding how investigations fail is essential.

Why Investigations Matter

Under federal and state employment law, employers have an obligation to address complaints of harassment and discrimination. When complaints are made:

• Employers must take them seriously
• Reasonable investigation is required
• Appropriate corrective action must follow
• The investigation itself must not be retaliatory

Failing any of these steps creates liability.

Common Investigation Mistakes

Mistake #1: Not Investigating at All

The most basic failure: ignoring complaints entirely.

Sometimes employers assume complaints are unfounded, or that the accused is too valuable to question, or that investigating will "make things worse." None of these excuses holds up legally.

What it means for employees: An employer who doesn't investigate may be liable for the underlying harassment and for failure to take appropriate action.

What it means for employers: "We didn't think it was serious" isn't a defense. The failure to investigate denies you the affirmative defense that a prompt, effective investigation might have provided.

Mistake #2: Investigating With the Wrong Person

Who conducts the investigation matters enormously.

Red flags include:

• The accused person's friend or ally conducting the investigation
• The complainant's supervisor investigating (conflict of interest)
• HR personnel with known bias
• Investigators who've already formed conclusions

What it means for employees: A biased investigator predictably reaches biased conclusions. Document who is investigating and their relationship to the accused.

What it means for employers: Courts examine whether investigators were neutral. Using compromised investigators undermines your defense.

Mistake #3: Predetermined Conclusions

Some investigations are designed to reach a particular result. Signs include:

• Investigator announces conclusions before interviewing witnesses
• Key witnesses are never contacted
• Exculpatory evidence is ignored
• Only one side's witnesses are interviewed
• The report is written before investigation is complete

What it means for employees: A sham investigation may be worse than no investigation—it provides cover for ignoring a legitimate complaint.

What it means for employers: Fake investigations are transparent in litigation. They suggest the employer knew there was a problem and chose to hide it.

Mistake #4: Inadequate Documentation

Good investigations leave clear records:

• Who was interviewed and when
• What questions were asked
• What responses were given
• What documents were reviewed
• What conclusions were reached and why
• What action was taken

When this documentation is missing or sparse, it's hard to prove the investigation was thorough.

What it means for employees: Request a copy of the investigation report. If it doesn't exist or is vague, that's evidence the investigation wasn't genuine.

What it means for employers: "We investigated but didn't write anything down" sounds like "we didn't investigate."

Mistake #5: Retaliation During Investigation

Sometimes the investigation process itself becomes retaliatory:

• The complainant is isolated or ostracized
• Negative performance reviews appear after complaints
• The complainant is transferred to a worse position
• The accused supervisor continues to control the complainant's work

What it means for employees: Document any adverse treatment during the investigation. Retaliation claims can be stronger than the underlying discrimination claim.

What it means for employers: Investigators must ensure the work environment doesn't become hostile to complainants. "We investigated" doesn't help if the investigation made things worse.

Mistake #6: No Action After Finding Problems

An investigation that finds harassment occurred—but takes no corrective action—creates serious liability.

Corrective action must be "reasonably calculated to end the harassment." This might require:

• Discipline up to and including termination
• Separation of the parties
• Training requirements
• Monitoring for recurrence
• Policy changes

What it means for employees: If the investigation confirmed your complaint but nothing changed, the employer may be liable for what happens next.

What it means for employers: Finding a problem and ignoring it is worse than never investigating. You've now documented that you knew.

Mistake #7: Breaking Confidentiality

Investigations should be as confidential as reasonably possible. When details leak:

• The complainant may be retaliated against
• Witnesses may be influenced
• The accused may destroy evidence
• The workplace becomes hostile

What it means for employees: If investigation details were spread inappropriately, that's potential evidence of hostile environment or retaliation.

What it means for employers: Loose lips create claims. Control information flow.

Mistake #8: Punishing the Victim

Sometimes investigations end with action against the complainant:

• Firing both parties for "mutual conflict"
• Disciplining the complainant for "disruption"
• Involuntary transfer of the complainant

These responses often constitute retaliation, even if framed as neutral policy enforcement.

What it means for employees: Being punished for reporting harassment gives rise to retaliation claims.

What it means for employers: "We treated everyone equally" doesn't work when "everyone" includes the victim.

What Good Investigations Look Like

A defensible investigation:

• Starts promptly after a complaint
• Is conducted by a neutral investigator
• Interviews all relevant witnesses
• Gathers and preserves documents
• Applies consistent standards
• Documents findings thoroughly
• Results in appropriate action
• Protects the complainant from retaliation
• Is completed in a reasonable timeframe

Using Investigation Failures in Litigation

For employees, investigation failures support multiple theories:

• Failure to prevent harassment — Inadequate response enabled ongoing harassment
• Negligent investigation — The employer's investigation fell below reasonable standards
• Retaliation — The investigation process was punitive
• Ratification — By not acting on findings, the employer adopted the harasser's conduct

We Analyze Investigation Quality

Whether you're an employee whose complaint was mishandled, or an employer who wants to ensure your investigations are defensible, contact us to discuss your situation.

For employees, we evaluate whether investigation failures create additional claims. For employers, we can review investigation protocols before problems arise.