Assessing Credibility in Workplace Investigations
By Ginger McRae, Esq., SPHR Senior Consultant, Atlanta, Georgia (800) 727‐2766 gmcrae@EPSpros.com www.EPSpros.com
Human resources professionals are often confronted with situations in which they must determine whether what someone is saying is credible. When interviewing candidates, selecting vendors, handling employee relations, and most frequently, in conducting investigations, HR professionals must cut through the clutter and noise, hone in on the crux of the matter, assess the information in terms of what is most likely true, and make decisions accordingly. While is it true that the more experience one has doing this, the better he or she is at making accurate assessments, there is guidance that can help the less experienced make better assessments of credibility. The Equal Employment Opportunity Commission’s (EEOC) guidance on conducting investigations makes plain the Agency’s view that credibility determinations are essential when there are “conflicting versions of relevant events.”1 According to the EEOC, “the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant's credibility, since harassment often occurs behind closed doors.” Employers are expected to evaluate factors weighing on credibility and make a determination if at all possible.2 Consider this classic “he said she said” harassment investigation scenario. A female employee of a small business, after a change in job duties, alleges several prior incidents of graphic sexual comments by an owner of the business. She alleges that her failure to be open to the sexual comments and discussion initiated by the owner led to the change in her duties. The female employee described comments related to masturbation and multiple sexual partners by the owner, all in settings in which they were the only ones present. The stakes are high since this is a potential economic harassment situation in which the employer could be strictly liable. A number of key factors in determining credibility come into play in investigating this situation. Demeanor At first blush, it might seem important to focus on behaviors that are often associated with lying, such as shifty eyes, fidgety behavior, and nervous blinking. Research has called into question whether these behaviors actually are associated with lying, however, and investigators should avoid relying on them to the inclusion of other key factors.3 What could be more helpful is to establish a rapport with the witness through asking basic questions about his or her job, duties, and time with the employer, and observe the witness in a relaxed state. When difficult areas are addressed in the interview, changes in the witness’ demeanor might be very obvious and instructive. In one situation, the accused’s face and neck became extremely flushed when difficult questions were asked about her relationship with a co-worker, indicating a high level of stress. In yet another situation, an accused CEO’s voice and face were composed, but he was noticeably perspiring during the interview. In the harassment investigation scenario described above, the complainant was relatively composed but seemed appropriately upset when describing the meetings about which she complained. All of these behaviors are pieces of the puzzle for the investigator, who must be extremely observant of body language and other nonverbal factors. Consistency of Memory and Evasive Responses In the harassment investigation scenario, the accused recalled the meetings at which the complainant alleged the comments occurred and talked about these meetings in detail. His memory was consistent across the timeframe in question. He admitted discussing sexual issues, and he said the complainant joined in the
discussion. The accused’s ability to provide details and admission that he discussed sexual issues enhanced his credibility. In contrast, an accused who had a generally good memory for dates and details, but who became evasive when asked about incidents that were relevant to an alleged relationship with a coworker, diminished her credibility. When asked to reference a calendar for dates and times of alleged events, the accused contradicted herself and the objective evidence, furthering lowering her credibility. Having a calendar in interviews is recommended! Another way to test consistency is to ask about key events a number of times throughout the interview and in follow up interviews. The investigator should probe for details and listen for inconsistencies. If there are contradictions, ask the witness about them and evaluate his or her explanation. If the witness does not have an explanation, note this and invite the witness to make contact if he or she wants to provide additional information. A witness’ credibility more often than not reveals itself over the course of these interactions. Bias and Motive to Falsify Whether the witness is biased or impartial is a key factor in determining credibility. If the relationships or other circumstances might cause a witness to be less than objective in his view, the investigator may not be able to rely on the witness’ information. The investigator should therefore carefully explore circumstances that might cause bias, such as whether the witness is a personal friend of the accused or complainant, has had a past conflict with either of them, or has a dispute with the organization. In the harassment investigation scenario described above, the complainant came forward with accusations of harassment after her marketing duties were removed and she was assigned to an operational role, a change she clearly viewed as negative. Several of the alleged incidents of harassment occurred before the change in duties, but she did not complain until after the change. The investigator should probe the reasons for the timing of the complaint and determine if her complaint was colored by her objection to the employer’s actions. In another investigation, the key witness to the complainant’s claims was a close personal friend and co-worker of the complainant. The information provided by the friend was very supportive of the allegations made by the complainant. While this information was considered, the personal relationship had to be factored into the weighting of the credibility of the information. The investigator should seek out potential witnesses without personal ties to either party, minimizing the factor of bias. Witnesses without an interest in the outcome often provide the most reliable insight into the situation. Inherent Implausibility In one situation, the complainant alleged that her manager, with whom she was discussing business matters as she was driving him to an appointment, reached over while she was driving and fondled her breast. There had been no prior incidents of this nature even though the two had previously been alone in more private settings. The complainant stated that the action was “out of the blue” and the manager did not say anything before, during or after the alleged touching. She could not give the exact date of the event, and she did not mention the incident to anyone for four months. Referencing my own experience with people, this scenario simply did not seem plausible. The manager involved was a sophisticated businessperson, and he seemed unlikely to take such a risk by forcing his attention on a subordinate in this way. It did not seem plausible to me that he would “out of the blue” in a moving car reach over and place his hand on the complainant’s breast. Investigators must use their common sense in evaluating witness statements. They must call upon their range of experience in life and conducting investigations to determine whether what is being described makes sense. This exercise is often supplemented by objective information. Thus, in the alleged fondling in the car scenario, the evidence showed the accused placed or received several cell phone calls during the drive in question, which utilized much of the time he was in the car. Did it seem likely that between calls or while he was on a call he reached over and touched the accused while she was driving? The answer seemed more likely negative than positive. Conclusion In making credibility determinations, investigators should consider demeanor, consistency of memory and evasive responses, bias and motive to falsify, and inherent implausibility. Other factors of importance include
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the witness’ character and opportunity to observe relevant actions or events. Consideration of these factors enables making important credibility determinations with confidence in investigations and other situations confronted by human resource professionals. Equal Employment Opportunity Commission’s Enforcement Guidance: Vicarious Employer Liability for Supervisor Harassment (1999). www.eeoc.gov 2 id. 3 Ormeyer, S. (2001). Veracity Blues, Daily Journal Newswire, citing Blumental, J. A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb.L.Rev. 1157 (1993).
About the Author Ginger S. McRae, Esq., SPHR is an attorney and Senior Consultant with EPS. Her consulting practice includes conducting investigations, serving as an Employment Practices Expert in litigation, training on a wide range of employment issues and consulting on employee relations issues. Ginger began counseling employers when she began her career as an associate with Paul Hastings in its national employment law group. Ginger then served as Assistant General Counsel for Turner Broadcasting System in Atlanta, advising the company’s varied businesses on a variety of employment issues, conducting harassment investigations, and preparing policies and procedures for the businesses. She also served as Human Resources Director at Turner Broadcasting, coordinating work-life programs and, in that capacity, supervised the development and opening of the company’s child care center. Prior to joining EPS, Ginger served as Managing Attorney for Southern Company, a large electric utility based in Atlanta. There, she added employee benefits expertise while continuing to provide counsel on the wide range of employment issues. She supported the company’s internal complaint program by providing legal advice and conducting investigations. She also was a frequent trainer on a variety of subjects. Ginger received her undergraduate and law degrees from the University of Georgia, with honors. She is a member of the Georgia Bar Association, the Association of Corporate Counsel, and the Society of Human Resource Professionals, at both the national and local levels. Ginger is certified by the Human Resources Certification Institute (HRCI) as a Senior Professional in Human Resources (SPHR). She joined EPS in 2001.
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