Lessons for employers conducting or outsourcing workplace investigations

A recent decision from the Massachusetts Superior Court provides a critical reminder to employers about the importance of workplace investigations done well.

Sound workplace investigations provide credible factual conclusions upon which decisionmakers can rely reasonably and in good faith. On the other hand, a flawed investigation can undermine even an employer with the best of intentions.

The Massachusetts decision came in a lawsuit brought in 2021 by a former employee of the Whitehead Institute for Biomedical Research in Cambridge. The plaintiff, Dr. David Sabatini, resigned after he was accused of sexual harassment and other misconduct based on an extensive investigation. In his 89-page Complaint, Dr. Sabatini alleged that his accuser, the employer, and the employer’s director defamed him during and after the investigation. He also alleged that he was discriminated against because of his sex due to the “sham” investigation.

Last month, the court dismissed some of Dr. Sabatini’s claims but allowed his claims of defamation against his accuser to proceed. In what was perhaps the most noteworthy part of the decision, the court granted summary judgment to the employer and director on the discriminatory investigation claim even though Dr. Sabatini provided an expert report from a seasoned workplace investigator who said that the investigation was so flawed that it was fundamentally unfair to Dr. Sabatini.

Background

Dr. Sabatini was a renowned cancer researcher at the Whitehead Institute for nearly two decades until he resigned over the allegations in August 2021. The investigation, conducted by an outside law firm selected by the employer, involved interviews with 43 witnesses and the collection of more than one million documents, resulting in a 128-page report. The report concluded that Dr. Sabatini had violated his employer’s sexual harassment policy, violated policy by engaging in a secret sexual relationship with his accuser, created a culture that undermined the employer’s rules and procedures, and caused fear of retaliation among potential complainants.

In a classic attempt to “turn the tables,” Dr. Sabatini went on the offensive by filing suit. For the past four years, the litigation has proved contentious. His accuser filed counterclaims, and the parties sparred over motions to dismiss and discovery matters.

The court’s decision

The trial court has now allowed Dr. Sabatini’s defamation claims against his accuser to proceed to trial, at least as to some of her alleged comments. A jury will have to decide whether the accuser’s statements were probably true or false, or whether they were nonactionable statements of opinion.

As noted above, however, the court granted summary judgment to the employer and the director on the investigation-related discrimination claim. Dr. Sabatini alleged that the employer and director discriminated against him by crediting his accuser and responding to her complaints about him, but not to his complaints about her, and failing to act on other revelations about the accuser’s alleged conduct.

Because there was no direct evidence of discrimination, the court assumed (without deciding) that Dr. Sabatini had met his burden of establishing a prima facie case of discrimination, but then determined that the employer defendants had identified a non-discriminatory reason for their conduct: they asserted that their actions were based on an independent investigation that ultimately established that Dr. Sabatini had violated multiple employer policies.

Dr. Sabatini argued that the accuser had controlled the investigation in an attempt to get him fired. In other words, he contended that the accuser was a “cat’s paw” for the employer defendants. However, the court rejected this argument based on testimony from the director that she had hired an outside firm in an attempt to ensure that the investigation was independent, and in making her decisions focused on documentary evidence that was separate from the accuser’s allegations and so not tainted by the accuser’s alleged bias.

Dr. Sabatini also argued that discrimination was ultimately evidenced by an inept and biased investigation, as indicated by an expert report that he commissioned.

The report from Dr. Sabatini’s expert contained a litany of purported failings of the investigation and the resulting report, including the following:

• Lack of promptness in beginning the investigation.
• Investigators who were insufficiently trained.
• Failure to understand and apply the relevant employer policies.
• Improperly narrow scope of the investigation.
• Failure to notify Dr. Sabatini of the nature and scope of the investigation.
• Failure to treat the parties consistently.
• Asking witnesses leading and other problematic questions, which intimidated the witnesses or caused them to believe the investigators were looking for particular responses.
• Failure to seek to speak to all relevant witnesses.
• Failure to seek complete documentation where incomplete records had been provided.
• Appearing to reach conclusions before all facts were gathered.
• Relying on information that had not been corroborated.
• Failure to make credibility determinations.

In rebuttal, an expert for the employer defendants maintained that these criticisms were cherry-picked and misguided, and that the investigation had been conducted by qualified individuals whose process was thorough and unbiased.

The court rejected Dr. Sabatini’s argument that the investigation was fatally flawed, explaining that employers are not required to implement a perfect process or even to make factual determinations that are “true” or “correct”—they are obliged only to make employment decisions “based on a good faith, reasonable view of credible evidence, as opposed to being motivated by discrimination.” The court acknowledged that the investigation was “certainly not perfect,” but it found that it “was no sham” and instead had “gathered sufficient evidence to allow [the employer defendants] to draw an independent conclusion.”

The court also considered and rejected Dr. Sabatini’s arguments that the employer defendants discriminated against him based on his sex. Summarizing Dr. Sabatini’s sex discrimination claim as one that “impermissibly seeks to have the court ‘be a vehicle for judicial second-guessing of business decisions,’ and to transform the court into a ‘personnel manager[]’ because he is unhappy about the outcome of an investigation that was focused on his conduct,” the court dismissed both of the employer defendants from the suit.

Lessons for employers and investigators

The dismissal of the employer and the director from the lawsuit should be welcome news for employers who take pains to conduct proper investigations of allegations of employee misconduct. In this case, the employer did exactly what it was supposed to do: it assigned unbiased investigators to conduct an investigation to gather the facts surrounding allegations of misconduct so that the employer could determine whether remedial measures were necessary.

Nonetheless, the court’s description of the investigation as “certainly not perfect” should serve as a caution to employers and investigators alike, and as a reminder that not every investigation will pass muster. A flawed investigation will be subject to challenge and could result in a finding that the employer acted with discriminatory intent or, in a hostile work environment claim, failed to remedy unlawful conduct.

With that in mind, here are some best practices for employers and investigators:

               For employers:

• Begin an investigation promptly once notified of a concern, and ensure that the investigation proceeds without undue delay. Regular supervisor training is essential to ensuring that concerns are addressed promptly.
• Ensure that any individuals conducting the investigation are impartial, and are well suited to the task of gathering evidence through interviews, document collection, and site visits where applicable. Specific training on investigations is not a legal requirement, but the chosen investigator should be knowledgeable regarding good investigatory practices and applicable law and policy. Prior experience with interviewing witnesses and assessing evidence from different sources is helpful.
• Ensure there is clarity regarding the scope of the investigation and any applicable policies or procedures, and be prepared to adjust the scope during the investigation if appropriate based on the facts that may be gathered. Employers need to balance their desire to avoid “scope creep” with the need to act on evidence of additional violations that may come to light.
• Avoid imposing limits on the investigation that could be perceived as reflecting bias or steering the investigation toward a pre-determined outcome. For example, concerns about contacting former employees or other third parties should be balanced against the need to ensure a reasonable investigative process.
• If an investigator is tasked with both gathering facts and reaching determinations regarding policy violations, avoid taking actions that could be viewed as seeking to direct the outcome, such as substantively revising a draft report. An investigator may welcome questions that lead to clarification of the investigator’s findings, but the employer should not dictate the investigator’s substantive conclusions.
• Ensure that employment decisions at the conclusion of an investigation are based on a good faith, reasonable view of the credible evidence identified in the investigation. As the court in this case noted, judges will not second-guess employers’ reasonable business judgments, absent indications that bias was the motivating factor. However, a “sham” investigation may indicate exactly that.
• Protect all participants in an investigation from retaliation. Whether or not the underlying concern is substantiated by the investigation, parties and witnesses should not face adverse employment actions based on having raised a concern or participated in the investigation.

For investigators:

• Ensure a thorough understanding of the scope of the investigation determined by the employer.
• Ensure a thorough understanding of the applicable workplace policies.
• Identify all relevant witnesses and speak with each of them, or document the reasons for any failure to do so.
• Identify relevant sources of additional information, including documents, emails, and texts, as well as physical items and spaces, and seek to gather and assess the evidence, or document the reasons for any inability to do so. Where documents that are provided are incomplete, consider seeking additional documents. If the decision is not to seek additional documents, document the rationale for the decision.
• Make consistent decisions that do not improperly favor one party or participant over another.
• Begin with open-ended questions and avoid phrasing questions in a way that assumes what the party or witness knows, or discloses the investigator’s assessments.
• Avoid reaching conclusions before the completion of fact-gathering.
• Where possible, seek to corroborate information and authenticate documents, such as by asking each participant to a conversation about the contents, or showing emails to the sender and recipient.
• Where accounts conflict, assess the credibility of all parties and witnesses by considering such things as motive to lie, corroboration, inconsistent statements, ability to perceive, and other relevant factors.
• Apply the correct burden of proof in making findings. Most workplace investigations involve the “preponderance of the evidence” standard, which asks whether it is “more likely than not” that the alleged conduct occurred.
• Document all stages of the investigation, including witness interviews, site visits, and important decisions made along the way.
• Act expeditiously, avoid unnecessary delays, and keep the employer informed of the progress of the investigation.

Adopting these practices will lead to high-quality investigations, ensuring that employers are complying with their legal obligations and providing comfort to employees that their concerns are treated appropriately.

Please feel free to contact any member of Constangy’s Investigations practice group, or your usual Constangy contact, with any questions you may have regarding workplace investigations.