The Importance of Empathy in Workplace Investigations

Romeo Mendoza complained to his employer that he was being sexually harassed by his supervisor. After performing a perfunctory investigation (only Mendoza and his supervisor were interviewed), the employer determined that both Mendoza and his supervisor had engaged in inappropriate sexual conduct in the workplace. Both Mendoza and his supervisor were then discharged. Mendoza sued for wrongful termination and retaliation, and the jury awarded him $238,328. On appeal, defendants contended that since the employer’s decision to fire Mendoza was made in good faith based on the factual findings of a workplace investigation, defendants were not liable as a matter of law pursuant to Cotran v. Rollins Hudig Hall International, 17 Cal.4th 93 (1998).

The Court of Appeal rejected defendants’ argument explaining that, “the lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth.” The court went on to state that, “employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation.” Mendoza v. Western Medical Center Santa Ana, 222 Cal.App.4th 1334 at 1344-1345 (2014).

This case points out the importance of conducting a thorough workplace investigation prior to taking an adverse employment action. One important aspect in conducting a thorough investigation is to obtain complete and accurate witness statements.

According to Lieutenant Brian Fitch of the Los Angeles Sheriff’s Department, “a successful investigative interview [requires] proper preparation and rapport.” Oppenheimer, Amy & Pratt, Craig. Investigating Workplace Harassment (2008).

Demonstrating empathy is a powerful way to establish rapport with witnesses. According to law enforcement experts, “Empathetic people foster more disclosure. This is why empathy is a professional requirement.” Shepherd, Eric & Griffiths, Andy. Investigative Interviewing: The Conversation Management Approach. Oxford University Press (2013).

Here’s an example of demonstrating empathy and how it led to greater disclosure by a witness in a workplace investigation:

An employee complained to her supervisor that a co-worker had made sexually offensive remarks. After the employer initiated an investigation, the employee was reluctant to share details of the sexually offensive remarks with the investigator. Sensing her reluctance, the investigator asked the employee how she was feeling about the interview. She told the investigator she was embarrassed for making “such a fuss” and that she “didn’t want to get anybody fired.” The investigator demonstrated empathy by stating, “I can understand your feelings and your reluctance to get anyone fired.” By acknowledging the employee’s feelings, the investigator demonstrated empathy. After this exchange, the complaining party felt more relaxed and was able to provide a detailed account of what had occurred.

Conclusion: According to the Mendoza case, employers who seek to rely on the results of a workplace investigation when making employment decisions must ensure that such investigation was performed in a thorough manner. Demonstrating empathy with witnesses is an important element of conducting a thorough workplace investigation that uncovers the truth of what occurred.