EEO Internal Investigations: Guidance for Employment Counsel

The flood of employee complaints and lawsuits alleging workplace discrimination continues unabated. The EEOC’s current strategic plan continues the agency’s focus on systemic discrimination litigation.

Counsel to employers should carefully guide employers’ actions when responding to a complaint of mistreatment based on an employee’s protected status. An inappropriate response to an individual claim may cause an employer to be targeted for a systemic discrimination lawsuit.

A fair and effective EEO internal investigation can be an employer’s best defense against a potential discrimination lawsuit. When conducted properly, an internal investigation can help a company avoid costly and protracted litigation.

Listen as our panel of employment attorneys explains legal and practical strategies for conducting EEO internal investigations. The panel will explain steps that employers and their counsel should take before, during and after investigating claims of workplace discrimination, retaliation and harassment claims to minimize litigation risks for a company.

1. Planning the investigation/pre-investigation strategies
   1. Benefits and risks of using attorney to conduct investigation
   2. Choosing the right investigator
   3. Common investigation techniques—forensics, surveillance, email reviews, etc.
2. Conducting the investigation
   1. Gathering evidence/litigation hold notices
   2. Managing the people/instructing managers
   3. Privilege issues
3. Post-investigation strategies
   1. Documenting the investigation
   2. Evaluating evidence obtained
   3. Determining remedial action
   4. Minimizing risks of employee retaliation claims

The panel will review these and other key issues:

• Key timing for an employer to bring in counsel to conduct an EEO internal investigation—and special considerations for practitioners involved
• Collection of email and other virtual evidence related to the allegations underlying the investigation vs. employees’ reasonable expectations of privacy
• Best practices to minimize the risk of litigation when planning, conducting and documenting internal EEO investigations