“During an EEOC investigation, can my employer interrogate me?”

Question: Dear Alan: First, I just want you to know that I have watched all of your website videos, and I love them!

This is my question: I filed a claim of age discrimination with the federal Equal Employment Opportunity Commission (“EEOC”) against my employer. They have assigned an investigator to investigate my complaint.

My employer has been notified, and now Human Resources wants to interview me about the EEOC Complaint I filed. Can they do this? Isn’t the employer supposed to rely on the EEOC to do the investigating? How can someone from HR claim to be objective? It sure feels coercive. Can I refuse to participate in the interview with HR, and ask my employer to contact the EEOC instead?

Reluctant
Tallahassee, Florida

Answer: Dear Reluctant: Having assisted hundreds if not thousands of clients who were “in your shoes,” I fully understand your (a) reluctance to participate in an interview/investigation, (b) distrust of your employer’s motives, and (c) concern that whatever you say, the employer will twist, take out of context, mischaracterize or even lie about.

1. Because you are an employee, you must abide by reasonable requests of your employer. Employers have a need to investigate any complaint of illegal behavior by or about its employees. That need is (a) a requirement of the law, (b) a policy for most employees, (c) required by insurance policies, and (d) practical, as well, because it is necessary to to stop further bad behavior.

For these reasons, an “internal” investigation does need to take place, and it is entirely reasonable for your employer to ask you to participate in it. If you refuse to do so, you could be characterized as “impeding an investigation” or “being insubordinate,” and be terminated for those reasons. By all means, you should cooperate.

2. Filing a complaint with the EEOC (or any government agency) does not change an employee’s obligation to cooperate with an employer’s internal investigation. Government agencies like the EEOC are not a part of the employment relation, and are not a substitute for it. Agencies such as these are independent, third parties, and are charged with investigating complaints. Imagine two drivers get into a car accident, and both say “It was his/her fault!” The police officers make a report, and an arrest if necessary, but they do not get decide who is right or who must pay the other person for their damages. In this example, the police are independent investigators, and enforcers; they don’t substitute for the two drivers’ lawyers.

Rights agencies like the EEOC investigate claims of abuse, and then make decisions. Their investigation of a complaint does not take the place of an employer’s own, internal investigation. In fact, the EEOC might even “investigate” the employer’s “investigation.” If the employer finds that, for example, an employee has been discriminated against, then the employer might take action on its own to remedy the situation.

We offer Model Letters entitled “Model Letter for Objecting to Illegal Discrimination – Age, Race, Gender or Disability,” that can be used to help people help themselves if they believe they have been affected by illegal discrimination. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!

3. While the EEOC does its investigation, the employer and employee also remain free to discuss resolution of the complaint. Quite often an employer will look into a complaint and find either that (a) the complaint is correct, or (b) it cannot determine if the complaint is correct, but it would nevertheless prefer to avoid the risks of a lawsuit or continued EEOC investigation. In these instances, employers often approach the employee-complainant, and try to resolve or settle the matter on its own, to avoid lawsuits or investigation by the EEOC. If the “deal” offered is good enough for the employee to accept it as a full resolution, then it seems everyone is better off. For this reason, too, employers’ own internal investigations are viewed as positive in achieving faster and less adversarial results.

4. However, an employer cannot legally pressure an employee to withdraw his or her complaint of discrimination filed with the EEOC. Every now and again we hear of an employer seeking to pressure or coerce an employee to withdraw a filed complaint of discrimination. If anything like that should happen to you, you should immediately report it, in detail, to the EEOC or other rights agency, because that would be retaliatory, and a very serious violation of law, quite possibly even criminal in nature.

5. To discourage dishonesty by your employer’s investigator, you might ask that you be entitled to (a) take notes during the interview session, (b) suggests certain witnesses, (c) have your spouse, a friend, co-worker, or attorney be present with you during the interview session, and/or (d) engage in the interview session over the telephone. While you do not have a legal right to any of theses “accommodations” during an interview by your employer, it can’t hurt to make a request for them. First, your request just might be granted. Second, it sends a “message” that you are “on your toes” and “on the lookout” for any indications of bad faith. Third, if you are declined, it creates a record that seems to suggest that your employer is afraid others might find out the truth, while you have nothing to fear.

6. If you see any indications of “bad faith” in your employer’s investigation, it should be reported in writing immediately to the EEOC. There is an old saying in legal circles: “The best proof of the crime is the cover up.” Said a bit differently, if your employer has nothing to hide, why does it seem to be hiding (a) its investigation process, or (b) the results of its investigation, especially from you, the alleged victim?

The most serious form of bad faith in this circumstance is retaliation by means of (a) being watched or criticized far more than others; (b) being denied a deserved promotion or advancement unfairly; (c) being denied needed resources or information to do your job; and (d) being terminated without good cause or compelling reason.

Feel you’ve been retaliated against? Use our “Model Memo Objecting to Retaliation on the Job” to stop it and have it reversed. What to Say, and How to Say It™, just [click here.] Delivered by Email – Instantly!

7. Here are some other common indications of bad faith by an employer during its investigation of reports and complaints of discrimination or harassment: (a) failing to interview the complainant; (b) failing to interview the alleged victimizer; (b) insisting that the employer’s attorney be present, but denying the employee’s attorney to be present, during the interview; (c) an inordinate delay in proceeding with the investigation or disseminating its results; (d) interviewing only witnesses who are friendly with the alleged victimizer or unfriendly to the alleged victim; (e) acting toward the complainant in a way that is openly hostile, harassing, humiliating or belittling; and (f) taking responsibilities, authority or amenities away from the complainant without good justification.

If you see one or more of these forms of “bad faith,” or others, during the pendency of an EEOC investigation, you should report them immediately to the EEOC investigator who is handling your complaint.

Hope this helps, and at the least lowers your anxiety level a bit about what you are going through. Just take it one step at a time, and one day at a time, and things will soon sort themselves out. My congratulations on your having the courage to file the EEOC complaint and, in this way, stand up for yourself, and be a model of courage for others.

My Best,
Al Sklover 

Repairing the World,
One Empowered – and Productive – Employee at a Time™

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