Practical Tips for Investigating Discrimination Complaints

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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

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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.
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Developing your plan

• Legal standards
• Methods for Gathering Evidence
• Putting it all Together

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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.

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Legal Standards
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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)

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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

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Step 1 The Prima Facie Case

• Complainants Burden to Prove
• Member of a protected category
• Adverse action
• Nexus to their protected category
• Treated differently from someone similarly
  situated

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What is the adverse action that is the basis of
Ms. Garcias complaint?

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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.
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What is the Career Centers justification for its
actions?

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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.
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Whats next?

• What is the challenged adverse action?
• Based on Ms. Garcias 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?

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Methods for Gathering Evidence
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Information comes from

• In person interviews
• Phone interviews
• Written interrogatories
• Document requests

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Putting it all Together
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Start with the Complainant

• What do we need to ask Ms. Garcia?

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Interviews and Interrogatories

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

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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?

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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.

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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 Centers computers.

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(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.

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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

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What do we ask those witnesses?

• Open-ended questions based on information learned
  from Ms. Garcias 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

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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

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Is the investigation complete?

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

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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