One of the most important and often most challenging
tasks of the workplace investigator is to make credibility determinations about
witnesses. Over the years, a common mistake I've seen investigators make
in investigating allegations of workplace misconduct is failing to make
findings of fact because they were not comfortable making the necessary
credibility assessments where there were conflicting statements made by the
people interviewed. Good and well-trained investigators, however,
recognize that credibility assessments are not only a critical part of their
responsibility but also understand the importance of documenting how such
credibility assessments were made.
Before I set forth some best practices for assessing
witness credibility, I think it's also helpful to revisit the "honest belief"
defense. Under the "honest belief" defense, if an employer can
demonstrate that it had an honestly believed, nondiscriminatory reason for
taking the employment action being challenged, an employee cannot establish
that the offered reason is pretextual simply because the employee may be able
to prove subsequently that the employer was wrong in its honest
belief. I don't review the "honest belief" defense here as some
type of "get out of jail free" card for employers but rather as a reminder of
the standard of review that courts will use in reviewing an employer's decision
that is later alleged to be discriminatory.
So, how does an investigator assess witness
credibility? There is a lot of discussion in the literature on this
topic, but one of the most pragmatic approaches I've suggested over the years
is to turn to the pattern jury instructions in the relevant jurisdiction on
witness credibility and use them as a guide. Why? It goes back to
anticipating the "honest belief" defense discussed above. The
investigator is not charged with making factual findings beyond a reasonable
doubt or that are 100% accurate, but rather making factual findings based on a
well-done and thorough investigation. The employer will then take or not
take an employment action based on its "honest belief" of the facts as
established by the investigation. Utilizing the relevant jurisdiction's
standard jury instructions provides an easily available and defensible
checklist should the investigator/employer later have to defend the process
used to assess credibility.
Generally, an investigator will be able to locate the
applicable pattern jury instructions with a simple "Google" search. By
way of example, I've set forth below the Eleventh Circuit Federal Court Pattern
Jury Instructions for Criminal Cases (2010). The Eleventh Circuit
includes Georgia, Florida and Alabama.
Credibility of Witnesses
When I say you must consider all the evidence, I don't
mean that you must accept all the evidence as true or accurate. You
should decide whether you believe what each witness had to say, and how
important that testimony was. In making that decision you may believe or
disbelieve any witness, in whole or in part. The number of witnesses
testifying concerning a particular point doesn't necessarily matter.
To decide whether you believe any witness I suggest that
you ask yourself a few questions:
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