Practical Tips for Investigating Discrimination Complaints Susan Hutton, U.S. Department of Labor, Office of the Solicitor Laura Stomski, U.S. Department of Labor, Civil Rights Center

Developing and organizing a plan for investigation The key to conducting an effective investigation is to organize your thoughts and develop a plan before you start interviewing witnesses, reviewing the evidence, and drafting the investigative report. Identify the major issue(s) Identify subject of inquiry within those issues General to Specific What subjects do you need information about? What details do you need to know about those subjects? Develop a plan to get your information

Developing your plan Legal standards Methods for Gathering Evidence Putting it all Together

Hypothetical: Ms. Garcia was laid-off from her position as a housekeeper for the Ocean Motel. She speaks Spanish fluently and some English. She applied for unemployment benefits, but her request was denied.

Legal Standards

Developing your plan: An overview of possible legal theories Categories of Discrimination Disparate Treatment Disparate Impact Hostile Work Environment Reasonable accommodation (applies to Religion and Disability) Theories of Discrimination Today’s example deals with disparate treatment Disparate Treatment – individual recipient or employee individually being treated less favorably than another Provide examples for each theory

Disparate Treatment Different Treatment Must be Intentional Direct or Circumstantial Evidence: Direct evidence – the "smoking gun“ Circumstantial evidence – does not prove a fact but permits the inference that a fact is true Overview of Disparate Treatment NEED EXAMPLES OF TYPCIAL DISPARATE TREATMENT --Essence is different treatment – the employer or provider treats some people less favorably than others because of their race, color, religion, sex, national origin, age, disability or political affiliation --Fundamental issue is whether intentional discrimination exists – whether the employer's or provider's actions were motivated by discriminatory intent --Claimant may prove discrimination by either direct or circumstantial evidence --Direct evidence – the "smoking gun" – a memo stating that a manager did not hire a claimant because she was a woman. In most cases, claimant will not have direct evidence of discrimination --Circumstantial evidence – does not prove a fact but permits the inference that a fact is true, for example, personnel records from a company that show a woman has never been hired even though qualified women have applied In employment context, disparate treatment allegation can apply to hiring, discharge, discipline, promotion, transfer, demotion, retaliation, and any adverse action taken against an employee

Step 1: The Prima Facie Case Complainant’s Burden to Prove: Member of a protected category Adverse action Nexus to their protected category Treated differently from someone similarly situated Proof of disparate treatment through circumstantial evidence – 3 step burden-shifting analysis Step 1 – the claimant must first establish a "prima facie" case of discrimination Step 2 – the provider or employer must respond with a legitimate, non-discriminatory reason for its actions Step 3 – in order to prevail, the plaintiff must establish that the provider's or employer's legitimate non-discriminatory reason was pretext to mask the unlawful discrimination

What is the adverse action that is the basis of Ms. Garcia’s complaint?

Legitimate Non-Discriminatory Reason Step 2: Rebutting a Prima Facie Case Legitimate Non-Discriminatory Reason The provider or employer must respond with a legitimate non-discriminatory reason for its actions. Step 2 – Rebutting the prima facie case – the Provider's or Employer's Burden Once claimant creates an inference, or presumption, of discrimination, burden shifts to the provider or employer to rebut the prima facie evidence by articulating a legitimate non-discriminatory reason for the adverse action Provider or employer must clearly set forth the reason's for the claimant's adverse treatment and reasons must not be vague, inconsistent, or without credibility Provider's or employer's burden is light – they need only produce evidence that creates an issue of fact – once they've done that, the prima facie case is rebutted What is the non discriminatory reason here? We need find out by investigating…

What is the Career Center’s justification for its actions?

Step 3: Pretext If provider or employer provides a legitimate non-discriminatory reason, the claimant must establish that the provider's or employer's reason was pretext to mask the unlawful discrimination. In other words, the complainant must show the stated justification was not the real justification, but was used to cover up the discriminatory conduct or decision. Step 3 – Claimant's proof of Pretext = lie If provider or employer successfully rebuts inference of discrimination by presenting evidence of legitimate non-discriminatory reason, the claimant may still prevail by proving that the "justification" was a pretext for discrimination

What’s next? What is the challenged adverse action? Based on Ms. Garcia’s allegations, what type of discrimination may have occurred? What information do you have? What do you need? Where can you get that information? What documents do you need? Who do you need to talk to? Who do you need to talk to?? What about other relevant witnesses? Has either party identified one or more witnesses that will support their story? Has either party identified one or more witnesses that will undercut their story? Has either party identified one or more witnesses that will support or undercut the story of their opponent? Are there any other people not named by either side that you think are important to talk to? For example, supervisor, subordinate, owner? What do you need? Requests for production of documents, policy manuals, personnel files, diaries, correspondence, etc

Methods for Gathering Evidence

Information comes from… In person interviews Phone interviews Written interrogatories Document requests There are several ways of getting the information you need when investigating claims of discrimination. Typically, information can be obtained through: interviews, Interrogatories -- written questions used to obtain written responses. Helpful to clarify allegations, obtain official position statements. Useful for identifying witnesses and documentary evidence. requests for production of documents -- written requests for specific documents There are four likely sources of information: the complainant witnesses, including complainant’s supervisor and co-workers, and other witnesses named by complainant and others the opposing party, i.e. the employer or provider of services documentary evidence Only use telephone interviews if you absolutely have to. Interviewing face to face has definite advantages. You can observe demeanor and credibility People may be less likely to lie if you are in person You can more easily use documents

Putting it all Together

Start with the Complainant What do we need to ask Ms. Garcia?

Interviews and Interrogatories ASK: Who, What, When, Where, and How? Example: Describe what happened when you went to the to the Career Center?

Prompt your witness Why did you go to the career center? Do you recall who you spoke to? Were you by yourself? Were you given any materials? Did you complete any forms? What were you told about your benefits? Who told you that? Introduce yourself and discuss interview procedures to make witness feel comfortable. Develop a rapport with the interviewee, set them at ease, alleviate fears. Describe the purpose of the interview and explain your role as a neutral party conducting an investigation. Be an active listener Be careful that nothing in your words or manner implies criticism, surprise, approval or disapproval Give verbal feedback (ie., “that’s useful information” NOT “Are you kidding?” Non-Verbal Feedback (ie, maintain eye contact, nod head, look at interviewee, don’t be a distraction) Maintain eye contact Nod head Face the interviewee Don’t distract Allow controlled venting be quiet and listen use silence to your advantage- don’t fill pauses paraphrase to check for understanding try to hear exactly what is being said in the message provide appropriate, nonbiased feedback Explain also that you will be interviewing others

Practical Interviewing Tips Be careful not to make assumptions. Ask clarifying open-ended questions, but avoid leading questions. Ask whether there are other people who may have knowledge of the circumstances surrounding the complaint that you should talk to. Are there gaps in the information? Ask follow-up questions to fill those gaps. Example of open-ended question: How did Mr. Jones respond when you asked him for help? Notify: It may be necessary to re-interview a witness

What we learned from our interview of Ms. Garcia: Ms. Garcia went to the Career Center with her 12 year old son, Luis. Initially, she spoke with Ms. Martinez, a bilingual receptionist. Ms. Martinez referred Ms. Garcia to Mr. Jones, an employment specialist, who only spoke English. He gave Ms. Garcia some forms to complete and also asked her to enter some information online using one of the Career Center’s computers.

(continued) Ms. Garcia said she had great difficulty understanding Mr. Jones and requested if someone who spoke Spanish could help her. Mr. Jones told her that no one was available to assist her. Luis tried to assist with the written forms and entering information online. Several weeks later, Ms. Garcia received a letter, in English, denying her request for benefits.

Based on what we learned from interviewing Ms Based on what we learned from interviewing Ms. Garcia, who do we need to talk to next? Ms. Martinez, the Career Center Receptionist Mr. Jones, the Employment Specialist at the Career Center Luis Garcia? Unidentified Manager at the Career Center Who do you contact first? 1. Jones = letter denying benefits, basis for denial?

What do we ask those witnesses? Open-ended questions based on information learned from Ms. Garcia’s interview Consider whether the statements are consistent or not From the Career Center witnesses, ask them to explain their actions and general procedures for processing UI claims Inconsistencies: did we learn anything that would require us to re-interview Ms. Garcia?

Anything else? Are there any other individuals involved that we should speak to? Documents? Any relevant policies Corrective action taken, if any, in response to the complainant's complaint All Written communications including email messages, letters, memos

Is the investigation complete? Did you gather sufficient evidence to: Answer the prima facie questions? Establish the Career Center’s non-discriminatory reason for denying benefits? Did the Complainant offer any testimony to refute the Career Center’s reasons (pretext)? Is there sufficient information from which a decision-maker could render a decision?

What have we learned? Determine your legal theory of discrimination and use it as a guide for planning your investigation Use your interview time well – ask leading open-ended questions, summarize and revisit open issues Request relevant documents Look for gaps and inconsistencies in your information, re-interview witnesses if necessary