Practical Tips for Investigating Discrimination Complaints

1. 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

2. 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.

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

4. 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.

5. Legal Standards

6. 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)

7. 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

8. 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

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

10. 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.

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

12. 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.

13. 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?

14. Methods for Gathering Evidence

15. Information comes from… • In person interviews • Phone interviews • Written interrogatories • Document requests

16. Putting it all Together

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

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

19. 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?

20. 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.

21. 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.

22. (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.

23. 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

24. 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

25. 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

26. 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?

27. 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