AWI 2019 Issue 2 - cdn.ymaws.com

As new findings on the malleability of memory continue to devel-op, it is vital to reevaluate societal and legal systems deemed to be sufficient. Much attention has been paid to how the pitfalls of memory affect the criminal justice system. However, this article seeks to understand how the social conditions of memory affect a different area of law: impartial workplace investigations. This study is important to the legal field because, similar to decisions in criminal law, employment-related decisions can have detrimen-tal consequences for individuals, such as a permanently damaged reputation and loss of wages.

Impartial workplace investigations are not immune to the social conditions that contaminate memory. In fact, a witness’s memory can be altered by various means, and even the neutral investigator can be a key source of contamination. Therefore, certain aspects of workplace investigations need to be revisited to account for new findings on memory, such as the pre-investigation process, reliance on credibility assessments, and a research-based ap-proach to interviewing. This article is part one of a two-part ar-ticle regarding the social conditions of memory and its effect on workplace investigations. Part two will appear in the next issue of the AWI Journal.

Introduction“I know it was him! I remember,” may be a more complicated statement than it seems, as recent research on the sociability and malleability of memory suggests. Although memory is commonly thought of as a mental video recorder, Elizabeth Loftus, a cog-nitive psychologist and a leading expert on human memory, has reported on a “growing body of research” that maintains “memory more closely resembles a synthesis of experiences than a replay of a videotape.”1

continued on page 4

The Memory Conundrum: How Social Conditions and Misinformation Affect Eyewitness Memory—Part OneBy Debra L. Reilly and Julia N. Reilly

Several influences allow memories to change, such as: imagina-tion, leading questions, media, and listening to misinformation from others.2 Memories are vulnerable to “post-event informa-tion” (such as details, ideas, and suggestions) that can end up being integrated into a person’s “original” memory and shift the way a person believes an event occurred.3 This fault in memory can have severe consequences in our legal system (including in workplace investigations), such as false accusations and wrongful convictions, which often are based on eyewitness testimony. This article explores the effects of the social conditions of memory on “neutral” and “unbiased” workplace investigations.

Role of Workplace InvestigatorsWorkplace investigations play a crucial role in identifying, under-standing, and addressing allegations of workplace conflict, dis-crimination, harassment, and other misconduct.4 A workplace in-vestigation occurs when an employer, either internally or through an outside investigator, engages in fact-finding to determine whether allegations of misconduct have occurred. Fairness and neutrality are keys to the effectiveness and success of workplace investigations. Workplace investigators are tasked with reaching factual findings, which could have a lasting impact on an employ-er’s and/or employee’s reputation and career. Therefore, the na-

Uruguayan novelist Eduardo Galeano described memory as “born every day, springing from

the past, and set against it.”

AWI JOURNALVOLUME 10 | NUMBER 1 | MAY 2019

THE OFFICIAL PUBLICATION OF THE ASSOCIATION OF WORKPLACE INVESTIGATORS

2 THE AWI JOURNAL | MAY Vol. 10 No. 1 | 2019 www.awi.org

THE AWI JOURNAL

Susan WoolleyEditorChuleenan SvetvilasManaging Editor

Published quarterly by the Association of Workplace Investigators, Inc.1000 Westgate Drive, Suite 252St. Paul, MN 55114 [email protected]

The mission of the Association of Work-place Investigators is to promote and enhance the quality of impartial workplace investigations.

All articles are Copyright 2019 by Associa-tion of Workplace Investigators, Inc., unless otherwise specified. All rights are reserved.Articles may not be republished in any man-ner without the express written permission of the copyright holder. Republication re-quests may be sent to [email protected]. The opinions expressed in this publication are solely the opinions of the authors. They are not the opinions of the Association ofWorkplace Investigators, Inc.

If you are interested in writing for the AWI Journal, please send an abstract describing the topic you will be covering to [email protected]. Our articles focus on the many different aspects of workplace in-vestigations, including how the law applies to the work of investigators, practical mat-ters, similarities and differences between workplace investigations and other fields of endeavor, developments and trends in the law and profession, and book reviews. Proposal deadlines: June 24 for Issue 3, August 26 for Issue 4.

Letters to the editor are welcome; email [email protected]. Nothing contained in this publication constitutes legal advice.

ISSN 2328-515X (print)ISSN 2328-5168 (online)

President’s Message Baseball and the Art of Investigation I spend a lot of time thinking about two seemingly unrelated things: baseball and investigations. While they are different, base-ball can provide important lessons for workplace investigators.

Every investigation starts with understanding scope; the scope defines the playing field on which the fact-gathering occurs. Although the scope can be similar between investi-gations, every case, like every ballpark, has its differences. Some ballparks are smaller, with shorter outfield fences; others have a wider swath of foul territory. Some investiga-tions are tightly focused on one individual or one set of allegations, while others have a broad mandate to uncover misconduct.

Each batter, like each witness, requires a different approach. Some batters hit the outside pitch well; some hit the curveball well. Success in baseball and investigation involves knowing what approach will be most successful with that particular batter or that witness.

Baseball has many written rules, but also many unwritten rules. The same is true for the workplaces where we conduct our investigations. In many workplaces those unwritten rules are the most important ones. Skilled investigators, like good ballplayers, under-stand both sets of rules and use them to their advantage.

Investigators are like pitchers in some ways, throwing the ball/questions to witnesses, but there is no one successful style. Some pitchers have a great fastball, others use great off-speed pitches. Some investigators have a more informal approach, while others succeed with a more business-like approach.

Errors are part of baseball. Sometimes they are game changers, but just as often they don’t figure in the final score. Experienced investigators know they will make mistakes, but also know there is no perfect investigation. We all make mistakes, but if our funda-mental work is good, the outcome is usually good enough.

Another exhausting similarity is that both baseball games and workplace investigations can take a long time. Sometimes both seem like they will never end; but whether they take nine innings or nine weeks, we need to find a way to finish.

But the most important baseball lesson may be the seventh-inning stretch. It is a little ridiculous, but in the middle of the seventh inning of every baseball game, everyone stands up, stretches their legs, and sings a silly song.

Every long investigation needs that kind of break in the action. It allows us to clear our heads and recharge our batteries. Some of us take a walk outside or go out for a nice lunch. I’ve been known to turn on a baseball game. But those breaks reduce stress, clari-fy our thinking, and allow us to do our best work. And if you want to sing a song, let me suggest, “Take Me Out to the Ballgame.” It always works for me.

(Thanks to Susan Woolley for the inspiration for this article.)

Keith RohmanPresident of the Board of Directors [email protected]

www.awi.org THE AWI JOURNAL | MAY Vol. 10 No. 1 | 2019 3

Letter From the EditorDear AWI Colleagues and Friends,

Keith Rohman, AWI’s president, is an avid reader, as am I, and we share an interest in applying lessons from many different fields of endeavor to investigations. Debra and Julia Reilly took the same

tack, looking beyond the bounds of the law in part one of their two-part article, “The Memory Conundrum: How Social Conditions and Misinformation Affect Eyewitness Memory.” The result is a fascinating examination of recent developments in the study of memory. Investigators must be aware of this field of study, which challenges traditional notions of how and what people remember.

Lisa Bowman draws on her experience in journalism and law to bring us “Writing an Investigative Report: The Seven Deadly Language Traps and How to Avoid Them.” She provides practical, clear advice on how to communicate our findings. All investigators I know (myself included) like learning how to write better. I hope we hear more from Lisa in the future on this and other topics.

A phenomenon that spans many areas of our lives is bullying. We hear the word in various workplaces—but what does it mean? This question is particularly important for in-house investigators who are charged with identifying, investigating, and some-times remediating bullying behavior. To the rescue comes Kevin Sherburne, who has a thoughtful analysis of the issues and a number of recommendations in his article, “Workplace Civility Policies: A Workplace Investigator’s Need for Clearly Articulated Elements.” That phrase, “clearly articulated,” is music to my ears, as I’m sure it is for many of you.

I’ve also weighed in with an article in this issue, “Dealing with Difficult Witnesses,” because I was struck by Gayle King’s composure during her widely publicized inter-view of R. Kelly. Like many people, I thought, “How did she do that?” I looked at Ms. King’s own reflections on her experience to see what workplace investigators could learn from her.

Last but never least, thanks to all who help make the AWI Journal happen, especially the Publications Committee, whose service to AWI is a labor of love and much appreciated. If you’d like to contribute to our publication or have suggestions for topics you’d like to see in these pages, please contact us at [email protected].

Susan Woolley Editor, AWI Journal [email protected]

EDITORIAL BOARDSusan M. Woolley, Editor*William D. Bishop Jr. Ann BossGabrielle Handler MarksLynn D. LieberJennifer A. MacKenzieMargaret E. MatejkovicNora QuinnDebra L. ReillyJudith A. RosenbergKathleen SageRobyn Sembenini

BOARD OF DIRECTORSKeith Rohman, President*Karen Kramer, Vice President*Eli Makus, Treasurer*Monica Jeffrey, Secretary*Sue Ann Van Dermyden, Past President*Terri Abad Levenfeld*Britt-Marie K. Cole-Johnson*Jeremy EavesElizabeth W. GramignaMonica Jeffrey*Emily KauferReuben MjaanesCara PanebiancoSarah ReyElizabeth Rita*Debra Schroeder

*SUSTAINING MEMBERSEvelyn BaileyIan J. BondsmithNancy BornnCarl A. BotterudLinda G. BurwellZaneta Butscher SeidelBarbara DaltonLeslie EllisDonna R. EvansMark FlynnAnn FromholzKathy M. GandaraNikki HallSusan K. HatmakerDebra Hinshaw VierraAviva KammPeter G. LandLynn D. LieberDeborah M. MadduxMarilou MirkovichJulie MooreLynn M. MorgenrothTrish MurphyDiana NehroAmy OppenheimerGeralynn PatellaroTherese PautzDon PhinMichelle Regalia McGrathChristina Ro-ConnollyMichael A. RobbinsDaniel W. RowleyCaroline SchuylerDavid StallardS. Brett SuttonVida ThomasAlezah TriguerosKadambari WadeAllison WestLizbeth WestSarah WorleyJulie Yanow

Thanks to all who help make the AWI Journal happen, especially the Publications

Committee, whose service to AWI is a labor of love and much appreciated.


ture of workplace investigations is built on the foundation that workplace investigators are able to make impartial and unbiased findings of fact.5 However, as will be demonstrated, ample oppor-tunity exists for implicit bias and misinformation to seep into the investigative process.

One role of the workplace investigator is to be the fact-finder. An investigator is similar to a jury as the fact-finder in a jury trial in that their role in assessing the credibility of witnesses and evaluating the weight of evidence is imperative to reach a cor-rect final conclusion.6 Likewise, credibility assessments are an important function of a workplace investigator. The investigator must make credibility determinations regarding the witnesses and the evidence, and ultimately, decide whether “more likely than not” reasonable grounds exist to believe a witness and the facts discovered.7 (Part two of this article will discuss credibility as-sessments in more detail.)

Effective and thorough workplace investigations are essential to protecting an employer against liability. The U.S. Supreme Court ruled that in sexual harassment litigation, employers may escape liability for the improprieties of their employees by responding promptly to complaints of misconduct with a workplace investi-gation, and must follow the investigation with “swift” corrective action.8 According to the Equal Employment Opportunity Com-mission (EEOC), an effective investigative process is “prompt, thorough, and impartial,” and protects confidentiality.9 Courts rec-ognize that employers, who have taken an adverse action against an employee found to have engaged in misconduct, can be pro-tected against a discrimination claim by that employee. The court or jury will review the adequacy of the investigation process, so a well-documented investigation containing a credibility assessment and findings of fact is a way in which an employer can demonstrate to the jury that it engaged in an effective and impartial investiga-tion, thus eliminating the employer’s liability.10 However, many factors could contaminate an impartial workplace investigation.

Misinformation EffectMemory is malleable and susceptible to contamination from so-cial conditions. Uruguayan novelist Eduardo Galeano described memory as “born every day, springing from the past, and set against it.”11 Memory can be scrambled unintentionally, often occurring when a person is in the process of trying to retrieve a memory, retell a story, or listen to another person recall his or her account of the event.12 The process of a witness (or anyone) hearing misinformation, incorporating those details into his or her own memory, and resulting in a change of perception of the event, is known as the “misinformation effect.”13

Loftus conducted a study of memory as a “constant restructuring process,” and examined the effects of exposure to misinformation

on memory accuracy.14 In the study, participants watched a video of a mock crime and were asked to read one of three versions of a misleading article, each containing differing degrees of misinfor-mation—20 percent, 50 percent, and 80 percent, respectively. The participants then completed a memory test, rated the credibility of the misinformation source, and estimated their own memory performance.15 Loftus and her fellow researchers examined five effects of exposure to misinformation: (1) whether increasing the amount of misinformation to true information negatively impacts memory accuracy, (2) how sensitively participants monitor the accuracy of the misinformation source, (3) whether the perceived credibility of the misinformation source attempts to balance the relations between misinformation exposure and memory accu-racy, (4) whether perceived source credibility leads to improve-ment of future source monitoring, and (5) the accuracy of the participants’ self-assessment of their own memory performance.16 Studying these five factors allowed the researchers to gather ad-ditional support for the negative impact of misinformation on the accuracy of memory and investigate factors that could contribute to resistance to misinformation.

When misinformation is recalled instead of the details that ac-tually occurred, due to the source of misinformation being re-garded as original memory details, it is referred to as a “source misattribution error.”17 The study on the effects of exposure to misinformation on memory accuracy revealed that participants who received an article with 80 percent misinformation provid-ed a smaller proportion of correct responses, and a higher pro-portion of misled responses to misinformation, than participants in the 20 percent condition.18 The proportion of misled respons-es to misleading items for the 80 percent subject group was .3, while the proportion of misled responses to misleading items for the 20 percent subject group was .19. The researchers suggest that the high rates of misinformation may have disturbed partici-pants’ cognitive ability by challenging them to sort through high rates of misinformation, and the “cognitive load may have made them more vulnerable to the misinformation.”19 However, the researchers also found an opposing pattern wherein participants who received a high amount of misinformation were more skep-

The Memory Conundrum—Part One continued from page 1

Whether or not misinformation exposure permanently impairs

the original memory, it is evident that witnesses can report

misinformation that is suggested to them.


tical of the credibility of the source, which led to an increase in source monitoring and resulted in a significant decrease of the misinformation effect.20 Although exposure to a higher propor-tion of misinformation was associated with a lower proportion of correct memory responses to misinformation items, this effect was dampened for those participants who were made particular-ly skeptical of the information source because of high levels of misinformation in the narrative.”21 Thus, “within each condition participants performed best if they reported being skeptical of the accuracy of the narrative” and skepticism of the source led participants to be “partially protected from memory errors.”22 Exposure to misinformation can contaminate and alter an in-dividual’s recounting of an event, which can lead to incorrect eyewitness testimonies and result in devastating consequences. The effects of the perceived credibility of a source and source monitoring in the context of a workplace investigation will be discussed later in this article.

Although the misinformation effect is widely established in the social psychology community, debate still exists about the fate of the original memory representation following exposure to misinformation.23 Over several decades of research and stud-ies, Loftus concludes that when misinformation is recalled in the recounting of an event, substitution has occurred.24 In other words, misleading information permanently replaces original information.25 However, some researchers argue that misinfor-mation does not impair retrieval of original memories; rather, it influences the account of a witness who did not encode original detail, or simply forgot the detail over time.26 No consensus ex-ists on misinformation’s role in memory impairment. Whether or not misinformation exposure permanently impairs the origi-nal memory, it is evident that witnesses can report misinforma-tion that is suggested to them.27

Psychology professors Maria Zaragoza and Sean Lane conduct-ed a study to answer the question: Do subjects come to believe that they actually remember seeing the suggested details they report?28 The researchers found that subjects exposed to mis-leading suggestions came to believe that they actually remem-bered seeing the suggested information.29 Zaragoza and Lane concluded that access to “familiarity information” is automat-ic and unintentional, whereas recalling source information and source monitoring requires controlled processing.30 Although debate continues on the condition of the original memory after misinformation, Zaragoza, Lane, and Loftus all agree that mis-information can be recalled in the recount of an event due to wit-nesses believing that they truly recall the suggested information. Therefore, witnesses may be confident in recalling their memory because they believe that they actually witnessed the suggested information. Misinformation can be supplied to a witness via “social contagions” in several ways, for example, recounts of an event by other witnesses, biased social media, and even the investigator.31

Social Contagion: Misinformation from Other Witnesses

When an unusual event occurs, it generates conversation among witnesses and bystanders. Post-event information has the abili-ty to distort a witness’s original memory, and, unfortunately, lis-tening to the recount of an event from others can be filled with new observations and information. Speakers can mislead listen-ers about the past, and that can change existing memories of lis-teners—a process referred to as “social contagion” or “memory conformity.” Mark Bennett, then a federal district court judge, reported on witness memory conformity studies that establish that “discussions between co-witnesses have great potential to influence the testimony of all witnesses, with far reaching con-sequences.”32 Psychologists Jonathon Koppel and William Hirst conducted a study to determine the effect of listening to others “remember” on subsequent memory; the experiment consisted of a speaker and listener.33 The speaker selectively remembered a previously studied narrative story as the other participant listened. In one condition, the speaker was an “expert” on the story, and in the other condition, the speaker’s familiarity with the story was equivalent to the listener’s familiarity with the story.

As the researchers predicted, perceived expertise of the speaker heightened the level of social contagion. The mean proportion of social contagion events recalled by listeners of the so-called ex-perts on the story was .28, compared to only .08 of listeners of “nonexperts” retelling the story, which demonstrates that listeners are more susceptible to their memories being altered if the listener perceived the speaker as an expert.34 The researchers then sought to test whether social contagion varied based on the listener’s trust in the speaker’s memory. They tested this effect by observ-ing a conversation between two participants: one was assigned the baseline story to study, and the second was given a variant. Half of the participants were assigned as “warned” participants, and the other half were “nonwarned” participants—meaning that be-fore the participants were instructed to meet with their partner to discuss the story, the warned participants were given the follow-ing warning: “The story you have read before watching the film may have been slightly different from your partner’s version.” The film was given as a distractor task in between reading the story and discussing it with a partner. The researchers found that social contagion decreased as the trust in the speaker’s memory decreased. Koppel and Hirst’s findings demonstrate that the social relationship between the speaker and listener is one factor in in-fluencing social contagion.35

Discussions between witnesses may not only contaminate a mem-ory, but may also significantly boost a witness’s confidence in his or her memory representation because it has been “confirmed” by another witness.36 Expertise and trust, as analyzed in Koppel and Hirst’s study, are relevant to the workplace investigator because two employees recounting an event are less likely to believe that


their co-worker’s memory of an event is faulty or untrue; there-fore, one factor that typically decreases social contagion is not present. When viewing their co-worker or co-witness as an “ex-pert” or as trustworthy, the listeners are more open to having their memory influenced by the other witness.

Social Contagion: Social MediaAnother source of misinformation is social media, such as Face-book and Twitter. Social media platforms allow anyone to share his or her opinion, and because no fact-checking occurs on Face-book posts, the spread of misinformation is unavoidable. Further-more, social media allows for an abundance of echo chambers—where opinions are amplified because people are typically within a closed circle of similar-minded individuals.37 When people connect with others on social media, they tend to “friend” people who share similar beliefs and values. Therefore, people’s choice of friends influences what information they see. Additionally, in-formation acquired from social media is not only influenced by friends, but social media platforms also often use algorithms to determine what users see. Facebook and Twitter employ person-alization technology, which selects the most relevant content for each user.38 For example, if a Facebook user usually clicks on news articles from a specific source, Facebook will tend to show more of that source’s content, which leads to the creation of a “filter bubble.”39 The authors of this article (Debra Reilly and Ju-lia Reilly) contend that a filter bubble leads social media users to listen to only one side or one voice, and contrary to the ideal of journalistic objectivity, news outlets today are rarely neutral.

All of these elements of social media combined create a diffi-cult-to-avoid source of misinformation. Social media plays an increasing role in the misinformation effect, especially in civil and criminal litigation. Big name or high-profile cases draw large amounts of media coverage, which Bennett, the former district court judge, described as “perhaps the most common source of misinformation in witness memory.”40 Although Koppel and Hirst’s study on the perceived expertise of the speaker and its ef-fect on social contagion did not expressly identify expert speakers from the media, the authors of this article believe it is probable that persons, viewing various news anchors and media sources as experts, can increase the amount of social contagion. A witness may absorb misinformation from media if he or she reads an ar-ticle containing inaccurate information written by someone he or she deems to be an authority or expert. For example, if a user is continually shown articles from a very liberal news source, either the result of an echo chamber or due to personalization technol-ogy, the user has likely developed trust in that particular news source, compared to if the user were to read an article by a very conservative news source. Workplace investigators face an even more unique challenge when handling high-profile cases because of the increased opportunity for witness’s memory representa-tions to become altered by the witness using social media and reading multiple news sources.

Leading QuestionsThe act of remembering occurs in social settings, and surprising-ly, misinformation may come from the interview process itself. False memories can be constructed unintentionally by the sug-gestion of others due to wording or phrasing.41 This reveals a key source of misinformation: leading questions. Loftus argues that the wording of a leading question can contaminate and alter mem-ory. To demonstrate how one word can influence a witness report, Loftus had subjects view a short video of a multiple-car accident and fill out a questionnaire immediately afterward. Half of the students received a questionnaire with six critical question stems beginning with, “Did you see the…” as in, “Did you see the bro-ken headlight?” and the second half received the question stem, “Did you see a…” as in, “Did you see a broken headlight?”42 The only difference in the questions was one word, the or a. The par-ticipants were asked to report what they saw by selecting “yes,” “no,” or “I don’t know,” and the six critical questions pertained to items not present in the video.43

Loftus found that participants who received the a question were over twice as likely to respond “I don’t know” to the critical ques-tions. Participants with the a question responded “yes” 7 percent of the time, and participants with the the question responded “yes” 15 percent of the time.44 Thus, the participants who were questioned with a definite article (the) reported a false “yes” more than twice as often.45 It follows then that when an investigator asks, “Did you see the broken headlight?” it implies to the listener that there actually was a broken headlight. The the question can be translated into, “There was a broken headlight. Did you see it?”46 Using the the question automatically eliminates the need to ask the question, “Was there a broken headlight?” Not only did the study demonstrate that people answering the the question were more likely to respond “yes” or “no” rather than “I don’t know,” but it also demonstrated that questions containing a defi-nite article (the) resulted in a greater number of false recognitions. These findings suggest that an investigator or interviewer has the ability to influence a witness’s report.47 The results of this study are tremendously important to internal workplace investigations. Different forms of the same question, even a change as small as one word, can be consciously used to provoke desired answers from a witness. One word can imply that something existed or occurred, when perhaps it did not, and the form of a question has the ability to lead a witness to a certain response.48

Including a presupposition into a question can influence the an-swer to the question about the presupposition because witnesses can conform their memory to include the newly supplied informa-tion.49 Loftus conducted a study to determine whether supplying information in a question can strengthen or make memory repre-sentations more available. The participants viewed a one-minute film of a car collision. After the video, half of the participants received a test with the question, “How fast was Car A going when it ran the stop sign?” The second half of the participants received the question, “How fast was Car A going when it turned


right?” Then both groups were asked the question, “Did you see a stop sign for Car A?” The results showed that 53 percent of the subjects who were asked the first “stop sign” question respond-ed “yes” compared to only 35 percent of the subjects with the “turned right” question.50

Loftus proposes two explanations for the results of this study. The first explanation is, “When a subject answers the initial stop sign question, he somehow reviews, or strengthens, or in some sense makes more available certain memory representations cor-responding to the stop sign,” and when he is asked, “Did you see a stop sign?,” he responds based on the strengthened memory rep-resentation.51 The second explanation is called the “construction hypothesis,” wherein the subject may visualize or reconstruct the portion of the event that is needed to answer the question.52 There-fore, according to Loftus, if a subject accepts the presupposition (a stop sign was present), the subject introduces that new infor-mation into his or her own visualization of the event, and when he or she is interviewed later about the incident, the subject reports based on his or her supplementation to the actual incident. Lof-tus argues that the subject now “sees” the stop sign that has been reconstructed in his or her memory by the leading question, but this will not tend to happen if the initial question only refers to the right turn, in the example used in Loftus’s study.

Including presupposed information into an interviewer’s question (whether intentional or not) is not the only way to influence a witness’s memory and event recount. In fact, synonyms and word choice can also contaminate a witness’s memory.53 Loftus showed participants a video of a car accident and followed it with several questions about the event that occurred in the video. One group of subjects was asked, “About how fast were the cars going when they smashed into each other?”; the second group was asked, “About how fast were the cars going when they hit each other?” However, Loftus’s critical question was not asked of the partic-ipants until one week later. Participants were then asked if they saw broken glass in the scene, and the results demonstrated that subjects who received the “smashed” question were more likely than those who received the “hit” question to state that they saw broken glass in the video, even though glass was not present in the video. Although hit and smashed both carry essentially the same meaning, smashed implies a greater level of severity.54 Even when the interviewer believes he or she is not giving presupposed information, in this case smashed had the ability to reconstruct a memory into a more severe accident, which led participants to believe (falsely) that it was likely that broken glass was present in the video.55 This study demonstrates the importance of word choice and the consequences of unintentionally giving the witness suggestive information.

Numbers and measurements also have the capability of shaping responses. In workplace investigations, investigators seek to un-derstand how frequently the alleged harassment or discrimination occurred. An investigator might ask a question similar to, “How

many times did your boss touch you inappropriately? A couple times? More than ten?” Loftus conducted a study to determine the accuracy of witness estimations by including suggested numbers in questions. She interviewed 40 participants about their head-aches and various headache products. The participants were under the impression that they were participating in market research on headache products. Two crucial questions were in the experiment, and both questions were asked with slightly different wording or estimations:

1(a) In terms of the total number of products, how many other products have you tried? 1? 2? 3?

1(b) In terms of the total number of products, how many other products have you tried? 1? 5? 10?

2(a) Do you get headaches frequently, and if so, how often?2(b) Do you get headaches occasionally, and if so, how often?

The results showed that the participants with the “1, 2, 3” ques-tion said they tried an average of 3.3 headache products, whereas the “1, 5, 10” subjects reported having tried an average of 5.2 headache products.56 Although including numbers in a question may seem harmless, the witness may presuppose that his or her answer should fall within the suggested range.57 Loftus also found that subjects given the “frequently” question reported having an average of 2.2 headaches per week, and the “occasionally” group reported having an average of only 0.7 headaches per week. With-out explicitly supplying subjects with a range of numbers, a ques-tion using the word “frequently” implies a more numerous occur-rence than using the word “occasionally.”58 Loftus contends that if a question contains true or false presuppositions, a witness’s original memory or original representation can be altered. Post-event information can be supplied to a witness by the investigator inadvertently, and when it occurs, the witness may remember the event based on the newly introduced information.

Implications of the Aforementioned ContagionsThe Association of Workplace Investigators established Guiding Principles for Conducting Workplace Investigations, which pro-vides, in part:

An impartial investigation is generally conducted so that an employer can determine what occurred when there are con-tested allegations affecting the workplace that involve a poten-tial violation of the employer’s policies, standards, ethics, or the law. The point of an impartial investigation is to provide a fair and impartial process for the complainant and respondent and to reach reasoned conclusions based on the information gathered.

Unfortunately, no one is immune to the sociability of memory. Therefore, bias and misinformation not only have the capability of contaminating a witness’s memory during the pre-investiga-tion, but it can also occur during the investigative interviews with


the witnesses; during mid-interview private discussions between an attorney and his or her client; and from outside influences, such as the media, gossip, or rumor mill in the workplace; or circula-tion of the reporting party’s written complaint (especially if al-ready a lawsuit) within the workplace.

In part two of this article, the implications of social contagions on credibility assessments will be discussed, confirmation bias’s effect on leading questions will be addressed, and tools an in-vestigator can use to avoid biases and maintain neutrality will be provided.

Debra L. Reilly, SPHR, is the founder of Reilly Workplace Investigations in Encini-tas, California. She has been an employ-ment law attorney for 30 years and has conducted more than 900 investigations throughout California and in other states. She provides expert witness testimony re-

garding standard practice for conducting workplace investiga-tions and other human resources-related issues. She can be reached at [email protected].

Julia N. Reilly, also a workplace investigator at Reilly Workplace Investigations, recently graduated from the University of California, Santa Barbara, with high honors, majoring in sociology of law. She will be attending law school in fall 2019. Ms. Reilly can be reached at [email protected].

1. Loftus, Elizabeth F. “Our Changeable Memories: Legal and Practical Implica-tions.” Science and Society, 4 (2003): 231. 2. Ibid.3. Loftus, Elizabeth F. “Memory Faults and Fixes.” Issues in Science and Tech-nology, 18.4 (2002): 41–50. 4. Lattal, Ashley. “The Hidden World of Unconscious Bias and its Impact on the ‘Neutral’ Workplace Investigator.” Journal of Law and Policy, 24.2 (2016): 411-466. 5. Ibid.6. Yanow, Julie B., and Lorene Schaefer. “Making Credibility Determinations.” Association of Workplace Investigators, module 7, AWI Training Institute (2013). 7. Ibid. 8. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 9. “EEOC Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.” U.S. Equal Employment Opportunity Commission (1999).10. Cotran, supra.; Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256; 76 Cal.Rptr. 2d 382 (1998). 11. Kruszelnicki, Karl S. “Repressed Memory: Part 2.” ABC Science, 14 October 2004.12. Loftus, Elizabeth F. “Our Changeable Memories: Legal and Practical Implica-tions.” Science and Society, 4 (2003): 231–234.13. Loftus, Elizabeth F. “Make-Believe Memories.” American Psychologist, (2003): 868. 14. Loftus, Elizabeth F., et al. “The Effects of Exposure to Differing Amounts of

Misinformation and Source Credibility Perception on Source Monitoring and Memory Accuracy.” Psychology of Consciousness: Theory, Research, and Prac-tice, 4.4 (2017): 337–347. 15. Ibid. 16. Ibid. 17. Lindsay, D. S., & Johnson, M. K. “Reality Monitoring and Suggestibility: Children’s Ability to Discriminate Among Memories from Different Sources.” Children’s Eyewitness Memory (1987): 92–121. 18. Loftus, Elizabeth F., et al. “The Effects of Exposure to Differing Amounts of Misinformation and Source Credibility Perception on Source Monitoring and Memory Accuracy.” Psychology of Consciousness: Theory, Research, and Prac-tice, 4.4 (2017): 337–347.19. Ibid, 344. 20. Ibid. 21. Ibid. 345.22. Ibid. 345.23. Zaragoza, Maria S., and Sean M. Lane. “Source Misattributions and the Suggestibility of Eyewitness Memory.” Journal of Experimental Psychology: Learning, Memory, and Cognition, 20.4 (July 1994): 934. 24. Loftus, E. F., & Loftus, G. R. “On the Permanence of Stored Information in the Human Brain.” American Psychologist, 35.5 (1980): 409–420. 25. Ibid. 26. Ibid.27. Zaragoza, Maria S., and Sean M. Lane. “Source Misattributions and the Suggestibility of Eyewitness Memory.” Journal of Experimental Psychology: Learning, Memory, and Cognition, 20.4 (July 1994): 934–945.28. Ibid. 29. Ibid. 30. Ibid. 31. Ibid, 940. 32. Bennett, Mark W. “Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility.” American University Law Review, vol. 64, (2015): 1331–1376. 33. Koppel, Jonathon, and William Hirst. “The Effect of Listening to Others Remember on Subsequent Memory: The Roles of Expertise and Trust in Socially Shared Retrieval-Induced Forgetting and Social Contagion.” Social Contagion, 32.2 (2014): 148–180. 34. Ibid, 157. 35. Ibid, 148–180.36. Bennett, Mark W. supra, 1331–1376.37. Tornberg, Petter. “Echo Chambers and Viral Misinformation: Modeling Fake News as Complex Contagion.” Public Library of Science, 20 September 2018. 38. Ciampaglia, Giovanni Luca, et al. “Misinformation and Biases Infect Social Media, Both Intentionally and Accidentally.” The Conversation, 19 Sept. 2018.39. Ibid, Bias in the Brain. 40. Bennett, Mark W. supra, 136241. Loftus, Elizabeth F. “Leading Questions and the Eyewitness Report.” Cogni-tive Psychology, 7 (1975): 560–572. 42. Loftus, Elizabeth F., and Guido Zanni. “Eyewitness Testimony: The Influence of the Wording of a Question.” Bulletin of the Psychonomic Society, 5.1 (1975): 86–88. 43. Ibid.44. Ibid, 87. 45. Ibid. 46. Ibid.47. Ibid. 48. Ibid. 49. Loftus, Elizabeth F. “Leading Questions and the Eyewitness Report.” Cogni-tive Psychology, 7 (1975): 560–572.50. Ibid, 564.51. Ibid. 52. Ibid. 53. Ibid. 54. Ibid. 55. Ibid.56. Ibid, 561.57. Ibid. 58. Ibid.


You’ve spent hours on site. You’ve reviewed pages of documents. And you and your team have conducted dozens of interviews. How do you ensure that your final written product conveys the results of your investigation in a succinct, clear, and, perhaps most importantly, defensible manner? New investigators often fall into language traps that threaten to undermine their credibility. Here are some of the most common pitfalls to avoid when writing an investigative report:

Trap 1: Adopting the Language of the Complainant or Respondent without Providing More DetailsOne pitfall for new investigators is adopting the complainant’s de-scription of the incident without furnishing more detail. Consider the differences between the following accounts.

A: A complainant states that the respondent “massaged” her. B: Witnesses saw the respondent place his hand lightly on his

co-worker’s shoulder for a second or two.

A: A co-worker complained that his boss “threw a ball at me.” B: Witnesses said the supervisor was tossing a ball in the air

while addressing the team, lost control of it, and the ball bounced across the table several times, after which the com-plainant caught it and the supervisor said “nice catch.”

A: A respondent claimed he just “brushed against” a co-worker unintentionally.

B: Witnesses stated that the respondent cut in line at the buffet, came up behind the complainant, and pinned her to the table with his body for 20 seconds while reaching over her for food and whispering in her ear.

In each of these instances, a report that only used the terms “mas-saged,” “threw a ball at me,” or “brushed against” would not cap-

Writing an Investigative Report: The Seven Deadly Language Traps and How to Avoid Them By Lisa Bowman

ture all of the factual elements of the interaction. This failure to fully describe the events underscores why investigators should use open-ended and follow-up questions to glean more details and ask interviewees to define the terms they use.

Trap 2: Using Legalese, Legal Standards, or Legal Terms instead of Descriptive Facts

Another common trap for new investigators, especially those who are attorneys, is using legal terms to describe actions or coming to a legal conclusion in the report. For example, a report that states the respondent “harassed” the claimant is reaching a legal con-clusion. Harassment under California law, for example, generally means behavior that is unwanted, severe, or pervasive, based on a protected characteristic, conducted by a supervisor, and harm-ful to the complainant. Thus, a sales manager who continually yells at his team for failing to meet their sales goals, and shouts at all employees equally, is not necessarily “harassing” the em-ployees under the law. In such an instance, the investigator should describe the incident using descriptive facts that convey exactly what actions the claimant believed to be harassing, and avoid us-ing the term “harassed” as a catchall. The decision maker can then make a conclusion based on those facts.

Similarly, it is not typical for the investigator to decide whether a given activity is “severe or pervasive.” The investigator’s re-port should, however, describe how often the activity occurred and provide great detail about what the complainant alleged the respondent did or said, along with the versions of events provided by both the respondent and any witnesses.

Some other examples of this language trap can include reports that call the complainant the “victim” or the respondent “the accused” or that use terms such as “discriminate” or “accommodate.”

Trap 3: Failing to Remain ImpartialFailing to remain impartial is another common pitfall. Some-times internal investigators, including those in human resource or legal departments, feel they must protect the company or the respondent during an investigation, especially if the respondent is a high-ranking member of the management team. However, the role of an investigator is to conduct a prompt, thorough, and impartial investigation. So skewing fact-finding or adopting an

New investigators often fall into language traps that threaten to

undermine their credibility.


employer-friendly lens when writing the report runs contrary to an investigator’s duty. Doing so may even harm the company and taint the investigation, making things far worse for the company when all of the facts come to light.

The report should read like a factual account of the incidents. In other words, it should be more like a news article than a legal brief. Furthermore, the report should be symmetrical. That is, for each allegation the complainant has made, the investigator should record the respondent’s corresponding account. This may also require the investigator to follow up with the complainant after speaking with the respondent.

Trap 4: Not Reaching a FindingOne of the biggest shortcomings in a report is when the investiga-tor fails to reach a conclusion about whether the alleged activity occurred. The reader is expecting a definitive finding. Therefore, you should use definitive language.

For example, don’t write, “My findings could go either way,” “it is possible that,” or “perhaps” in the findings portion of your re-port. That kind of equivocation is not helpful, and it’s not what the client is expecting (or paying you for). If it’s a close call, ac-knowledge that, but make a finding, using a phrase such as “The evidence was very close in this matter, but it came down to the credibility of John Doe.” In other words, you can use less-than- definitive language, but it should be intentional and indicate your conclusion that the decision was difficult.

Trap 5: Not Supporting Factual Conclusions with an Analysis

The reader must understand why you reached the conclusion you did. It is fine not to consider evidence or to give less weight to it, but a thorough report will explain the reasoning behind such decisions. It will do so by providing detailed facts and addressing issues such as credibility and corroboration (or lack thereof). For example, did a witness change his or her story over time or during the course of the interview? Do inconsistencies exist in a wit-ness’s recounting of events? Remember, the task of a fact-finder is to unpack and convey the facts and then state whether or not it is likely that an incident occurred. The reader should be able to trace your findings back to your analysis and reasoning.

Trap 6: Not Writing Clearly and ConciselyGood writing is good writing, and the admonitions of your high school English teachers ring as true for an investigative report as they did for a paper on To Kill a Mockingbird. Here are rules to live and write by: Avoid passive voice when you can. Keep the tense of the report consistent. And keep an eye out for unnec-essary adjectives and adverbs. There are many books containing writing tips, and some of the classics include The Elements of Style by William Strunk, Jr., and E. B. White, On Writing Well by William Zinsser, and Bird by Bird by Anne Lamott.

Trap 7: Not Having Someone else Read Your Report with a Critical Eye

Finally, a great way to ensure you are not falling into many of these traps is to engage a colleague to read your report with care. Some questions to pose to the reader include: Does the report seem skewed in favor of, or to prefer, one side or the other (out-side of the findings)? Are the reasons for the findings clear and understandable? Is the report readable and clear? In other words, does the report make sense? If it does not, scour the report for some of the traps enumerated in this article.

Of course, engaging a third-party reader can raise issues of priv-ilege and conflict. Although outside of the scope of this article, some best practices include: (1) walling off the investigator from any colleagues who may advise or represent in litigation the subjects or company involved in the report; and (2) having the third-party reader sign a nondisclosure agreement.

Lisa M. Bowman is a former journalist who now practices management-side em-ployment law at Ogletree Deakins in San Francisco. She conducts and advises on investigations for a variety of clients and draws upon both her legal knowledge and her experience as a journalist. She

holds a JD from UC Hastings College of the Law, an MS in journalism from Northwestern University’s Medill School of Journalism, and a BA from Harvard. Ms. Bowman can be reached at [email protected].

Remember, the task of a fact-finder is to unpack and convey

the facts and then state whether or not it is likely that an incident

occurred.


Since the first published use of the word “bullying” in workplace investigations in 1997, advocates of civility policies have suc-cessfully promoted legislation and employment policies that stem from—yet have distinctly different elements than—Title VII. With the rapid and exponential increase in claims of bullying in the #MeToo era, employers seeking to enact civility policies face a potentially significant challenge in ensuring that the terms of the policies are clear and unambiguous. Employers considering enacting workplace civility policies should ensure that their poli-cies enable workplace investigators to conduct investigations that are based on well-defined investigative plans; can yield objective, relevant evidence; result in stronger investigative reports; and rec-ognize employee rights.

This article reviews five key elements of, and proposes that these five elements are foundational to, a practical civility policy. Early advocates of civility policies grappled with the issue of whether or not workplace bullying was distinct from sexual harassment and race discrimination and, consequently, whether or not antibully-ing policies could potentially protect individuals who were not already part of a protected class. Published reports of the impact of these initial policies highlighted the success of civility poli-cies, yet, generally, these reports focused on individuals who were members of a protected class and, therefore, already protected by Title VII. Since about 2009, academics and researchers have con-centrated on analyzing research data and refining the language of antibullying legislation and workplace policies.

Any employer considering developing a strategy of inclusion among the various stakeholders—including employees—within its community must realize that having a civility policy is not a panacea for trouble in the workplace. Researchers disagree about whether civility policies promote a healthier workplace or serve to increase bullying behavior by teaching “what a bully does and looks like, teaching them how to better hide their behaviors.”1 Furthermore, policies that are not carefully crafted may result in unnecessary litigation because they are vague or infringe on constitutional rights.2 Finally, with additional civility policies on the horizon, some have opined that such policies could “open the floodgates for lawsuits by employees who feel their boss is abu-sive or even just unfair or mean.”3 On the whole, however, the trend is toward enactment and implementation of civility policies that are part of a broader civility strategy by employers.

Workplace Civility Policies: A Workplace Investigator’s Need for Clearly Articulated Elements By Kevin P. Sherburne

Five Elements Are Essential to an Effective Antibullying Policy

A review of varying definitions of bullying in the workplace is key to understanding which elements of the definition should be compulsory.

The Oxford English Dictionary defines a bully as “a person who habitually seeks to harm or intimidate those whom they perceive as vulnerable.” Merriam-Webster Dictionary’s primary definition of a bully is one who is “a blustering, browbeating person, es-pecially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.”

Although building on dictionary definitions’ focus on harm and repeated actions, definitions in civility policies vary widely. Re-searchers have one set of definitions;4 practitioners, unions, and private-sector organizations have another;5 and lawyers have yet another set of definitions.6 One researcher included the element of intent in her definition of bullying.7

Of all the elements of antibullying policies studied by research-ers, five appear critical to a well-written antibullying policy and implementation guidelines: (1) negative behavior, (2) repeated or persistent behavior by the bully, (3) intent to do harm, (4) harm, and (5) affirmative defenses. This article does not analyze other elements discussed by some researchers as valid elements to be included in a policy definition of bullying because they interject such subjectivity into the process as to render a workplace inves-tigation nearly impossible. The perception of powerlessness by the target or a requirement that the target “must recognise and ac-knowledge” that they have been bullied (before their experience qualifies as bullying), or whether the bully intends to be a bully (as opposed to an intent element limited to intent to do harm), is more properly suited to analysis by psychologists or sociologists

A workplace investigator must be able to look for evidence of

negative behavior.


and should not be included in a civility policy.8 Workplace investi-gators need to be able to obtain objective evidence of wrongdoing.

1. The Behavior Must Be NegativeA workplace investigator must be able to look for evidence of negative behavior. Negative behavior includes both verbal and nonverbal aggressive and hostile acts. These acts are often sub-tle, such as “belittling the target’s opinions and talking behind the target’s back;”9 ridiculing, insulting, or maligning a target;10 exploiting a target’s known intellectual or physical vulnerabili-ties; and cyberbullying using electronic means.11 Other types of negative acts include:

• “Staring, glaring, or other nonverbal demonstrations of hos-tility;

• Exclusion or social isolation;• Excessive monitoring or micromanaging;• Work-related harassment (work overload, unrealistic dead-

lines, meaningless tasks);• Being held to a different standard than the rest of an employ-

ee’s work group;• Consistent ignoring or interrupting of an employee in front

of co-workers;• Personal attacks (angry outbursts, excessive profanity, or

name-calling);• Encouragement of others to turn against the targeted em-

ployee;• Sabotage of a co-worker’s work product or undermining of

an employee’s work performance;• Stalking;• Unwelcome touching or unconsented-to touching;• Invasion of another person’s personal space;• Unreasonable interference with an employee’s ability to do

his or her work (i.e., overloading of emails);• Repeated infliction of verbal abuse, such as the use of de-

rogatory remarks, insults, and epithets; and• Conduct that a reasonable person would find hostile, offen-

sive, and unrelated to the employer’s legitimate business interests.”12

Physical bullying includes pushing, shoving, kicking, poking, as-saulting or threatening assault, damaging a target’s work space or property, or damaging a person’s work product.13 Physical bully-ing also may include directing threatening gestures toward a per-son or invading personal space.

When negative behavior takes the form of cyberbullying, it may manifest itself as a bully negatively commenting on social media about co-workers, peers, or subordinates, and can even extend to a supervisor or someone higher in the management chain. Cy-berbullying includes use of the “Internet, interactive and digital technologies, or mobile phones.”14

2. The Behavior Must Be Repeated or PersistentCivility policies should also include a requirement that the neg-ative behavior complained about be repeated or persistent.15 Al-though one researcher writing specifically about civility policies at institutions of higher education included language in her model antibullying policy that negative behavior “can occur as a single, severe incident,”16 she did not provide any discussion about the merit of including single, one-time acts.

Repeated behavior is a necessary element of the definition of bul-lying because it helps a workplace investigator look at the context of that behavior and thereby eliminate behavior that may otherwise be innocent or have a legitimate business purpose. It also highlights the severity of the bullying behavior against “ordinary or mundane workplace incivilities and conflicts.”17 For example, a workplace investigator who finds evidence that a supervisor checks in daily or weekly on the progress of certain tasks with an employee claiming to be the victim of bullying should look at that repeated behavior in the context of other evidence. That supervisor may not in fact be a bully or a micromanager if he or she is dealing with an employee known to be dilatory in fulfilling tasks or projects.

Including the element of repeated or persistent behavior in an antibullying policy raises the issue of whether or not bullying be-havior can be defined based on the amount of time the behavior has occurred. Studies on bullying have shown that the duration of bullying has ranged from 6 to 12 months18 to more open-end-ed durations, such as “throughout your career.”19 Having a set amount of time a behavior must occur before it can properly be characterized as bullying may be advantageous from an investi-gator’s post-hoc view. In addition, having a set amount of time in a policy provides a practical balance between employers who seek to eliminate frivolous claims of bullying and employees who may oppose a set timeframe as a way to define bullying behavior.

Nevertheless, guidelines that implement a civility policy should include reference to a set timeframe, lest one-off incidents that are exceptions to the rule of repeated or persistent behavior be-come the norm. In addition, the implementing guidelines should set forth a robust discussion about timelines in the context of other evidence of the alleged bullying behavior. Even a two-week pe-riod—where there is evidence of significant negative behavior, where the scope of the behavior is broad, and the harm is severe—might be something that falls under a civility policy.

Civility policies should also include a requirement that the negative behavior complained about be

repeated or persistent.


3. The Alleged Bully Must Intend to Do HarmIn addition to behavior that is negative and repeated, a civility policy should contain a general intent element that the alleged bully intended to harm the complainant.20 “The intent to harm the victim in a bullying case is key in distinguishing bullying from legitimate management practices, a co-worker “who may be at-tempting to influence [the victim’s] behavior for [his] own good,” or a co-worker who “lacks emotional maturity and is overreacting to a stressful situation.”21 An intent element in a civility policy allows a workplace investigator to review evidence as a means of eliminating benign intentions gone awry.22

The element of intent need not—indeed, should not—include a requirement that the alleged bully have specific intent to be a bul-ly. Rather, intent in the context of a civility policy need only re-quire evidence that the alleged bully knew or should have known that his or her action would lead to harmful consequences for the victim.23 An investigator should use the reasonable person stan-dard in determining whether the alleged bully intended to harm the victim. This is a basic level of intent that strikes a balance between an overly sensitive employee’s feelings and an alleged bully’s claim of ignorance about the consequence(s) of his or her behavior. In addition, it also provides an investigator with the ability to review evidence of the alleged repeated or persistent behavior to infer intent.

4. The Victim of Bullying Must Suffer HarmThe element of harm is a sine qua non to all civility policies.24 According to the Workplace Bullying Institute, “acts alone do not constitute bullying” and “neither act nor harm alone defines bully-ing.”25 The institute characterizes four types of harm: (1) stress-re-lated physical health harm, (2) emotional or psychological health harm, (3) harm to social status, and (4) economic harm.26

The element of harm is a tangible concept, is quantifiable, and is subject to measure by a workplace investigator. Including harm as an element also helps mitigate against solely focusing on the acts themselves, which may lead to “bullying or bully terms tossed around glibly when people really mean to say ‘mean.’ ”27

5. The Policy Must Delineate Affirmative DefensesA sound civility policy must include affirmative defenses and accompanying standards of proof built into the language of the policy. An affirmative defense allows an alleged bully to raise cer-tain facts that defeat or mitigate allegations raised by the alleged victim. Affirmative defenses help an alleged bully and employers protect against frivolous complaints by providing sufficient notice to complainants about the potential course of the investigation of their complaint and provide due process to respondents by allow-ing them an opportunity to defend their actions. Affirmative de-fenses allow a workplace investigator to explore different kinds of evidence provided by the respondent in an effort to discover if the alleged wrongdoing has a quantifiable legitimacy, while also

allowing the investigator to collect evidence and stay within the scope of the investigation.

Affirmative defense examples include:

• The employer exercised reasonable care to prevent and promptly correct any actionable behavior;

• The employee unreasonably failed to take advantage of ap-propriate preventive or corrective opportunities provided by the employer;

• The alleged bully acted at the direction of the employer, under actual or implied threat of an adverse employment action; or

• The alleged bully’s actions were reasonably taken due to the alleged victim’s poor performance, misconduct, or eco-nomic necessity; that the action was based on a reasonable performance evaluation; or that the action was based on the alleged bully’s reasonable investigation about potential ille-gal or unethical activity.

These examples are only representative defenses and an alleged bully would be free to raise other facts in his or her defense.

ConclusionIn conclusion, the work of a workplace investigator—as encom-passed in interviews, collection of documentary evidence, and ul-timately in an investigative report—is only as good as the policies that form the basis of the complaint. Civility policies need to be clear, unambiguous, and allow a workplace investigator the abili-ty to gather objective evidence. At the same time, civility policies should balance the rights of both complainants and respondents. A civility policy that requires proof of intentional negative behavior that is repeated or persistent and results in harm and provides a respondent the chance to assert affirmative defenses provides a common sense approach to ensuring civility in the workplace.

The views and opinions expressed in this article are those of the author and do not reflect the official policy or position of the Uni-versity of California.

Kevin P. Sherburne joined the University of California Office of the President in July 1998 and is a retired FBI Special Agent. He graduated from Santa Clara University and received his JD from The American University, Washington College of Law, where he was a law review editor. Mr.

Sherburne clerked for federal judges in Virginia and Washington, D.C., where he also practiced law for several prominent law firms, including Clifford & Warnke and Paul, Hastings, Janofsky & Walker.

endnotes on page 15


By now, Gayle King’s roller coaster of an interview with R. Kelly is legendary. The CBS This Morning co-anchor was lauded for her composure when Kelly loomed over her, punching the air and shouting during the infamous March 6 interview. How did King remain calm and how did she get the singer to sit down and con-tinue the interview, which included questions about allegations of sexual abuse of underage women? What can investigators learn from her handling of that volatile situation?

Lucky for us, King explained her reaction to Kelly in a televised interview on The Late Show with Stephen Colbert and in an inter-view published in The New York Times. Here are some takeaways from King’s explanation of her encounter with Kelly that can help all investigators faced with difficult witnesses.

Stay Calm and Carry onWhen asked by Stephen Colbert how she retained the composure of a “graven image from a temple,” King’s first thought, she said, was that Kelly would walk out of the interview, and she wanted to avoid that. King recognized that Kelly seemed upset and angry by some of her questions, but she also acknowledged that getting “amped up” along with him would do no good. Rather than engage or blame Kelly, King sat quietly and made eye contact with him. King ex-plained her reaction—when you ask an angry person to calm down, the typical response is, “I AM CALM!!” So, she waited, and Kelly eventually sat down and completed the interview.

Use the Witness’s NameColbert focused on King’s use of one word, “Robert,” in the face of Kelly’s outburst. People are soothed by hearing their name, King said. Whether or not this reaction can be proven scientifi-cally, Kelly eventually did sit down and calm down. Interestingly, scientists tell us that hearing our own name activates more areas of our brain than does hearing the names of others.1 Many decades ago, the self-help innovator Dale Carnegie emphasized that learn-ing and using people’s names is essential to establishing rapport.2

Respect the WitnessFifteen minutes before the taped interview, King introduced her-self to Kelly, thanked him for participating, and let him know that she was interested in his story. She told Colbert she didn’t want her first meeting with him to be in front of four cameras. In her New York Times interview, King said, “I felt sympathy for the hu-man being that I could see was coming unglued. I don’t have sym-pathy for the charges or the allegations.”3 How much her show of

Dealing with Difficult Witnesses: Lessons from Gayle KingBy Susan Woolley

courtesy and respect affected the interview is unknown. But surely it didn’t hurt. Putting witnesses at ease, assuring them that you will listen, saying thank you—these are practices all of us can include in all of our interviews.

Take a BreakDuring the height of Kelly’s outburst, a man is seen on the tape approaching Kelly and taking his arm as King explains that they paused the interview to “give [Kelly] a moment.”4 When the inter-view resumes, Kelly appears upset, but he is seated and talking to King and the camera. A person who appears to work for Kelly is at his shoulder and a makeup person is doing touch-ups. Although our witnesses don’t generally jump out of their chairs shouting and punching the air, they do sometimes yell, cry, argue, and escalate in other ways. Often the best tack in these situations is simply to take a break and let the emotions settle down.

There is a major caveat to all of these observations. King had many people around her when Kelly became belligerent. There were camera operators, makeup artists, publicists, and unknown others in the room. Investigators, on the other hand, tend to work alone with witnesses behind closed doors. Safety is paramount. If a witness is out of control or excessively angry, investigators should leave the room. Be safe.

It is unlikely that, as workplace investigators, we will handle in-terviews that are as threatening as Gayle King’s with R. Kelly—or that receive as much exposure. However, paying attention to her methods of dealing with a difficult witness will help us all in our day-to-day interview experiences.

Susan Woolley practices law in Pasadena, California, where she specializes in work-place investigations. She served as the di-rector of investigations under the consent decrees in the Denny’s race discrimination litigation, supervising a team that conduct-ed investigations in 49 states. Ms. Woolley

is an adjunct professor at Loyola Law School. She can be reached at [email protected].

Photo credit: CBS


1. Compare Meyer, Luo, Wilson, and Stone, “Sexual Orientation Enumeration in State Antibullying Statutes in the United States: Associations with Bullying, Suicidal Ideation, and Suicide Attempts Among Youth,” 6 LGBT Health 9, 11 (2019) (“Our results show that enumeration of sexual orientation in antibullying laws at the state level was associated with fewer suicide attempts, including serious attempts requiring medical attention, compared with state statutes that do not enumerate sexual orientation”) with Bidwell, “Study: Anti-Bullying Pro-grams May Have Opposite Effect,” U.S. News and World Report (Sept. 13, 2013) (citing study published in Journal of Criminology by Michigan State University researchers).2. Tucker, “U.S. Weighs in Against University of Michigan Bullying Policy,” AP News (June 11, 2018) (setting forth argument that policy at University of Michi-gan fails “to define the scope of banned words or actions”).3. Nagele-Piazza, “Workplace Bullying and Harassment: What’s the Difference?” Society for Human Resource Management (March 28, 2018).4. Researchers’ definition of bullying include “(a) the negative effect of the behaviour on the target, (b) the frequency and (c) persistence of the behaviour, and (d) the power imbalance that a behaviour must create before the conduct is regarded as an example of bullying.” Saunders, Huynh, and Gooman-Dela-hunty, “Defining Workplace Bullying Behaviour Professional Lay Definitions of Workplace Bullying,” 30 International Journal of Law and Psychiatry 340, 341 (2007).5. Practitioners, unions, and private sector organizations generally use more broad language in defining bullying, emphasizing “the types of behaviours and the negative effects that bullying may have on the targets of the conduct.” Saunders et al. at 341.6. Legal definitions of bullying are detailed and are most similar to those used by the scientific community. Legal definitions focus on five elements: “(1) targets experience negative behaviour; (2) behaviours are experienced persistently; (3) targets experience some harm, either psychological or physical; (4) targets perceive they have less power than the bully and, thus have difficulty defending themselves; and (5) targets label themselves ‘bullied.’ ” Saunders et al. at 342. The latter two elements listed in this definition do not appear to have been gener-ally accepted by entities enacting antibullying policies.7. Wajngurt, “Anti-Bullying Policies in Higher Ed,” Not in Our Town Blog (April 17, 2013) (“bullying is defined as the aggressive and hostile acts of an individual or group of individuals who are intended to humiliate, mentally or physically injure or intimidate, and/or control another individual or group of individuals.”) (emphasis added).8. Saunders et al. at 342.9. Ibid.10. Wajngurt.11. Wajngurt.12. Sue Ellen Eisenberg, Esq., “Give Me Your Lunch Money! Dealing with Bullies in Today’s Workplace: Model Anti-Bullying Policy” (online). The factors that constitute negative behavior in a civility policy generally track the language of factors in a harassment or discrimination case. Civility policies are a natural extension of antidiscrimination laws and policies. Yet, civility policies provide broader protection for employees and include pro-tections for all employees, not just those with protected characteristics.13. Wajngurt.14. Wajngurt.15. This element in a civility policy harkens back to Title VII’s requirement that

allegedly discriminatory conduct be “severe and pervasive” enough to create a hostile work environment. 16. Wajngurt (Model Anti-Bullying Policy, Section B(2)).17. Saunders et al., at 343. Saunders and her affiliate authors do not believe per-sistence is an essential element of an antibullying policy.18. Hollis, “Codifying Civility on Campus for Employees and Students: An International Perspective,” Background on Workplace Bullying (2019) (defining bullying as behavior that occurs “repeatedly and regularly over a period of about six months” and recognizing that some targets of bullying “will state they do not need six months of bad behavior to determine they are facing a bullying”).19. Saunders et al. at 343.20. E.g., Nagele-Piazza (“bullying is generally defined as unwelcome behavior that occurs over a period of time and is meant to harm someone”) (emphasis added); Canadian Centre for Occupational Health and Safety (“Bullying usually involves repeated incidents or a pattern of behaviour that is intended to intimi-date, offend, degrade or humiliate a particular person or group of people”). Not In Our Town (NIOT) is an Oakland, California–based movement to stop hate, address bullying, and build safe, inclusive communities for all. NIOT published an article entitled, “Anti-Bullying Policies in Higher Education.” NIOT’s Sample Anti-Bullying Policy included an intent element: “Bullying is defined as the aggressive and hostile acts of an individual or group of individuals who are intended to humiliate, mentally or physically injure or intimidate, and/or control another individual or group of individuals.” Saunders (emphasis added). (April 17, /2013)21. University of Louisville, “Workplace Bullying” Guidelines (“Not everyone who displays bullying behaviors can truly be described as a workplace bully” and “Just because you don’t like his approach doesn’t make him a bully.”) (https://louisville.edu/ombuds/selfhelp/reading/Workplace%20Bullying.pdf).22. University of Louisville, “Workplace Bullying” Guidelines (“Good-hearted people often make mistakes”) (https://louisville.edu/ombuds/selfhelp/reading/Workplace%20Bullying.pdf).23. Alternatively, the intent required need only be that the bully intended to do the act that caused the harm. Bullying is analogous to battery, a general intent offense. If a person commits battery that results in harm to the victim, it does not matter if he or she did not intend the harm.24. Saunders et al. at 342 (“The inducement of harm is an essential and necessary component in all definitions of bullying.”).25. “Workplace Bullying Without Consequences is Not Bullying,” Workplace Bul-lying Institute (Feb. 7, 2013) (https://www.workplacebullying.org/consequenc-es/); Saunders et al. at 343 (“Therefore, exclusive of the behaviour perpetrated, the criterion that a target must experience some form of harm as a result of the behaviour perpetrated, is a component about which there is consensus and is central in any definition of workplace bullying.”).26. “Workplace Bullying without Consequences is not Bullying,” Workplace Bullying Institute (Feb. 7, 2013) (https://www.workplacebullying.org/conse-quences/). Note that harm may be delayed, as in the onset of post-traumatic stress disorder. Id.27. “Workplace Bullying without Consequences is not Bullying,” Workplace Bullying Institute (Feb. 7, 2013) (https://www.workplacebullying.org/conse-quences/).

1. See, Carmody and Lewis, Brain Activation When Hearing One’s Own and Others’ Names at www.ncbi.nlm.nih.gov/pmc/articles/PMC1647299/ (last visited March 9, 2019).2. See, Carnegie, Dale, How to Win Friends and Influence People (1936, revised 1981).3. See nytimes.com/2019/03/08/arts/gayle-king-r-kelly-interview.html (last visited March 3, 2019).4. See youtube.com/watch?v=pafJHx-o21k (last visited March 10, 2019).

Workplace Civility Policies continued from page 13

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