By Tracey Merwise and Ilona Turner¹

Workplace investigations must be conducted impartially for a number of reasons. First, the investigator has an ethical obligation to be impartial, and failure to do so could constitute malpractice.² Second, an investigator’s reputation depends on them maintaining impartiality. Third, if an investigator fails to be impartial, they fail to accomplish what the client retained them to do. As a result, the client does not receive information that it can reliably act on. Fourth, conducting an investigation impartially helps ensure that the investigation will hold up to scrutiny by a court or arbitrator reviewing an employment decision.

It is clear that a good-faith, fair, and impartial investigation is essential to ensuring that the result is reliable and legally defensible. This article will examine examples that show how impartiality can be accomplished in practice. We first examine real-life examples of impartial investigations that substantiated allegations of misconduct in situations where the results were anything but favorable to the employer. We then outline some of the indicia of impartiality, looking through the lens of court decisions analyzing why investigations were or were not adequately impartial. We close by setting forth some practical tips for investigators to ensure their investigations meet the indicia of impartiality.

Examples of Impartial Investigations

Experienced workplace investigators know the importance of being truly impartial when conducting an investigation. We are motivated to maintain their impartiality by the fact that our investigation may well be scrutinized, the pride they take in their work, reputational concerns, and their desire to provide a solid product to their client.

While the results of most investigations are kept confidential to protect employee privacy, investigations are made public every day through litigation or, for investigations involving government employers, Public Records Act requests. Others are released as a result of public pressure, given the severity or breadth of the allegations. Many of these investigations substantiate allegations of misconduct, and the investigation reports underscore the fact that well-conducted investigations are impartial. If investigations were inherently biased in favor of the employer, or were conducted with a predetermined outcome to cover up evidence of wrongdoing, such outcomes would be rare, if not nonexistent.

For example, one widely watched investigation was initiated by the National Football League in 2020 into alleged misconduct at the Washington Commanders, stemming from a toxic culture purportedly created by then-owner Dan Snyder. The League hired an external attorney investigator, Beth Wilkinson, to conduct a thorough investigation into allegations of bullying and sexual harassment at the organization. Wilkinson’s team interviewed more than 150 people and reviewed thousands of documents

News reports and a congressional committee criticized the NFL’s handling of the investigation.³ They cited evidence that Snyder tried to obstruct the investigation (after which oversight of the investigation was transferred from Snyder to the League) and the NFL’s decision to receive only oral findings from Wilkinson at the conclusion rather than a written report.

Despite these critiques and despite Synder’s alleged obstruction of the investigation, however, it is noteworthy that Wilkinson’s investigation substantiated the allegations of misconduct; resulted in a $10 million fine levied against the Commanders by the NFL; and indirectly contributed to Snyder being forced out as the team’s owner within two years.⁴ Snyder may have gone to such lengths to attempt to interfere with the investigation precisely because Wilkinson conducted a thorough and impartial investigation that uncovered significant wrongdoing.

In another example, after the #MeToo movement gained prominence, alumni from elite private schools began sharing stories of sexual abuse at the hands of teachers and staff. Two schools in Southern California (the Cate School in Santa Barbara and the Thacher School in Ojai) hired external law firms to investigate the allegations.⁵ Both investigations found that decades of abuse had occurred, often with the knowledge of administrators. These results were widely discussed in the media, and the schools released the investigation reports publicly under pressure from alumni, students, and parents, despite the risks and negative publicity resulting from that disclosure.⁶

While private employers may be able to keep the results of investigations confidential, public agencies are often required to release them. One such investigation was conducted by attorney Amy Oppenheimer into allegations raised by one elected official against another. A Sonoma County (California) Supervisor alleged that the elected county sheriff bullied and threatened her during a wildfire evacuation.⁷ The investigation reached mixed findings, concluding that a preponderance of the evidence supported the allegation that the sheriff threatened the supervisor, but not that he was motivated by her gender. Such findings could arguably have led to lawsuits against the employer by either the supervisor or the sheriff, yet the investigator’s findings were reached without regard to this risk.

In another recent example, the report of an investigation conducted by attorney Jill Goldsmith for the Oregon Department of Corrections was released in February 2025.⁸ That investigation concluded that health officials in the prison system delayed medical treatment for incarcerated people and retaliated against employees who raised concerns about it. This led to the firing of two top leaders. The investigator’s finding arguably placed the Department at risk of liability in lawsuits from prisoners alleging they were denied adequate medical care. Notwithstanding this obvious risk, the investigator evaluated the evidence impartially and reached the conclusion that the officials had engaged in the misconduct alleged.

Numerous other examples exist of workplace investigations that substantiate allegations of misconduct.⁹ These real-life examples show that workplace investigators can and do follow our professional duty to conduct thorough, good-faith, impartial investigations.

Court Decisions Setting Out Indicia of Impartiality

A review of the case law also yields helpful guidance regarding what criteria make an investigation sufficiently impartial to pass judicial muster. Boiled down to its essence, the case law holds that an investigation is impartial where the investigator is demonstrably free from alliances that would give them a stake in the outcome of the investigation and where their investigation is conducted consistent with best practices regarding fairness.

In Cotran v. Rollins Hudig Hall International, Inc., 17 Cal.4th 93 (1998), the California Supreme Court articulated the standard an investigation must meet to provide a defensible basis for terminating an employee. The Cotran court examined a wrongful termination claim brought by an insurance executive who was terminated for sexually harassing two employees. The court held that an employer can successfully defend a wrongful termination claim by proving their decision to terminate an employee for misconduct was reached “honestly, after an appropriate investigation, and for reasons that are not arbitrary or pretextual.”¹⁰ This requires that the employer act on a “reasonable belief that good cause for terminating a for-cause employee exists,” and that belief should be based on “substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the [accused] employee to respond.”¹¹

The Cotran court held that the investigation under consideration was appropriate where the investigator had: interviewed 21 witnesses, including those named by the accused employee; explained the allegations and the investigation process to the accused employee; and gave him a chance to address and refute the allegations. The court also noted that, because the case boiled down to the complaining employee’s word against the accused employee’s, the investigator properly made and documented a reasoned credibility analysis.

Next, in Silva v. Lucky Stores, Inc., 65 Cal.App.4th 256 (1998), a California appellate court fleshed out the elements of Cotran’s “appropriate investigation” requirement. First, the court noted with approval that Lucky’s designated internal investigator had no stake in the outcome of the investigation. Second, the court found that the investigator was trained in investigation best practices, that he conducted an investigation that was consistent with Lucky’s internal written investigations policy, and that he documented the witness interviews thoroughly.

Looking into the specifics of the investigation, the Lucky court noted that the investigator spoke with all relevant witnesses: the complaining employee, all possibly relevant third parties, and the accused employee. He asked relevant, open-ended, non-leading questions to avoid suggesting a particular response, and he encouraged witnesses and the accused employee to contact him if they wished to speak to him again. The Lucky court also highlighted that the investigator investigated the allegations fully: drilling down to the specifics; weighing possible ulterior motives for the accusations; and re interviewing a complaining employee and witnesses to clarify certain issues raised by the accused employee.¹²

In contrast, courts have found investigations were not sufficiently impartial where the investigator had a potential stake in the outcome of the investigation and/or did not follow best practices designed to ensure impartiality.

For example, in Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009), the court examined a wrongful termination case based on an investigation of an employee’s alleged assault of a coworker. The investigation was conducted by the accused employee’s supervisor, who had ignored the employee’s prior complaints of racial harassment and had himself been the subject of complaints by the employee. The court found that these facts indicated potential bias and meant that, under United’s investigations policy, the supervisor should not have served as the investigator. The Nazir court contrasted this investigation with the one in Silva, in which the investigator was “a well-trained human resources representative, who had no connection with the accused employee.”

In addition, the Nazir court found that the supervisor in fact conducted the investigation in ways that showed potential bias. Specifically, the court noted that the investigator failed to provide the accused employee with the written complaint against him, as required by United’s investigations policy; ignored potentially exculpatory evidence by failing to interview witnesses the accused employee suggested could help him; and failed to address in his investigation findings statements by the complaining employee and the sole eyewitness that the physical contact was consensual, as the accused employee stated.

In other cases, courts have found that an investigation was not impartial where:

• the accused employee was not interviewed;¹³
• either of the parties was subjected to unnecessarily stressful investigation methods like excessive surveillance or having to repeat their traumatic
  story multiple times;¹⁴ or
• the investigator failed to analyze the credibility of parties and witnesses where necessary to support the findings.¹⁵

Practical Tips

It is essential that workplace investigators and those who hire or supervise them understand the importance of impartiality. Studies have shown that everyone has bias; no human being is completely free from it.¹⁶ However, the neutral investigator has a duty to understand their biases, examine them, and work to put them aside so they don’t impact the investigation. In cases where an investigator believes they cannot put biases aside, they can and should decline to perform the investigation.

Investigators also have a responsibility to take steps to avoid situations that call into question their impartiality. Having an investigator who has no stake in the outcome of the investigation and who follows best practices in conducting the investigation can mean the difference between an investigation that an employer can reliably act on and one that is unreliable and vulnerable to attack in a later court proceeding or arbitration.

Based on examples discussed above, investigators should follow these tips to help ensure that their investigations stand up to scrutiny as truly impartial:

• Avoid conducting an investigation where you have an actual or perceived interest in the outcome of the investigation based on pre-existing relationships with one or more parties.
  • Internal investigators should avoid conducting investigations of managers whom they have advised on personnel matters or otherwise worked with closely.
  • Internal investigators should not investigate someone above them in their own chain of command, such as the Director of HR or the CEO.
  • External attorney investigators should avoid conducting investigations for clients for whom they have personally served as or plan to serve as employment advisors or litigators. This will avoid any perception that the investigator did not sustain allegations of wrongdoing because they felt pressure to reach findings that would limit the organization’s exposure to liability.
• Follow consistent procedures in every investigation, pursuant to standards set forth by courts, EEO agencies, and professional associations like AWI, to help ensure that any biases you may hold do not affect the outcome of the investigation.
• Adhere to the employer’s written policies regarding how investigations should be conducted.

Conclusion

In sum, impartiality is a critical component of effective workplace investigations. By prioritizing a commitment to neutrality, investigators can reinforce trust in the investigative process. This not only ensures fair outcomes for all parties involved, but also protects the integrity of the organization, enabling employers to address misconduct decisively while fostering a safe and respectful work environment for all.

Endnotes
¹ The authors thank Morgen Hopson for her research assistance with this article.
² The AWI Guiding Principles state that investigator impartiality is a key element in workplace investigations: “Whenever possible, the investigator should be someone who is, in fact, impartial and who is perceived by the participants to be impartial.” In a 2023 article, Lindsay Harris and Amy Oppenheimer looked closely at historical precedent and principles of legal ethics to show that the role of attorneys is not limited to “zealous advocacy” on behalf of a client, but rather can (and must, in the case of workplace investigations) include independent and objective evaluation. See Attorneys Conducting Impartial Workplace Investigations: Reclaiming the Independent Lawyer Role, published in two parts in the AWI Journal in April and June 2023.
³ See, e.g., U.S. House of Representatives Committee on Oversight and Reform, Conduct Detrimental: How the NFL and the Washington
Commanders Covered Up Decades of Sexual Misconduct (Dec. 8, 2022); Ken Belson and Katherine Rosman, N.F.L. Penalizes Washington Football Team Amid Harassment Allegations (The New York Times, July 1, 2021), at . For the NFL’s announcement of the results of the Wilkinson investigation, see this NFL article.
⁴ A subsequent investigation into further allegations of misconduct by Snyder and the Commanders, conducted for the NFL by attorney Mary Jo White, resulted in a $60 million fine for Snyder.
⁵ The investigation into the Thacher School allegations was conducted by attorneys at Munger, Tolles & Olson, and the investigation into the Cate School allegations was conducted by attorneys at the Oppenheimer Investigations Group.
⁶ See, e.g., Maria Cramer, Thacher, a California Prep School, Apologizes for Past Sex Abuse, The New York Times (June 17, 2021).
⁷ The investigation report was released publicly following a California Public Records Act request from a local newspaper, which the Sheriff sued to prevent. See Essick v. County of Sonoma, 81 Cal.App.5th 941 (2022).
⁸ See Conrad Wilson, Fired Oregon prison health leaders delayed treatment, retaliated against staff, report claims, Oregon Public Broadcasting (Feb. 5, 2025).
⁹ See, e.g., Joon H. Kim, Jennifer Kennedy Park, and Abena Mainoo, Report for the Special Review Committee of the Board of Directors of the Federal Deposit Insurance Corporation (April 2024) (investigation concluding that FDIC failed to respond appropriately to allegations of sexual harassment and other misconduct); David C. Moser, Village of Williamsport Employment Investigation (Nov. 30, 2023) (investigation substantiating allegations that a City Council Member engaged in harassing conduct toward a city employee); The State Bar of California, Independent Investigation for the State Bar of California: Report of Investigation, (February 4, 2023) (investigation finding that State Bar’s handling of discipline complaints was improperly influenced by bias); Karen Kramer, Confidential Investigation Report City of Milpitas, Complaint of Tom Williams, (Nov. 13, 2017) investigation substantiating age discrimination and sexual harassment by city mayor).
¹⁰ 17 Cal.4th at 107 (emphasis added).
¹¹ Id. at 108.
¹² 65 Cal.App.4th at 260, 264-273.
¹³ McGraw v. Southgate (Township), 2021 ONSC 7000 (Can. Ont. Sup. Ct. 2021); King v. US Bank N.A., 53 Cal.App.5th 675 (2020); Lietz v. State ex rel. Dept. of Family Servs., 2018 WY 127 (Wyo. 2018).
¹⁴ T.M. v. Manitoba (Justice), 2019 MBHR 13 CanLII (Man. H.R. Comm’n 2019) (complaining employee required to repeatedly tell traumatic story); Vega v. Chicago Park District, 954 F.3d 996 (7th Cir. 2020) (accused employee surveilled extensively and interrupted at work to answer investigation questions, including in front of coworkers).
¹⁵ E tu, Inc. v. Singh, [2024] NZEmpC 84 (N.Z.) (investigator failed to speak with all attendees at meeting in question); Vandegrift v. City of Philadelphia, 228 F.Supp.3d 464 (E.D. Pa. 2017) (investigator failed to investigate all claims, including accused employee’s retaliation complaint, failed to interview or attempt to interview former employees, and failed to evaluate credibility of parties and witnesses).
¹⁶ See Anthony G. Greenwald and Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945 (2006).

Note: This article originally appeared in The AWI Journal, Volume 16, Number 3, 2025, the official journal of the Association of Workplace Investigators.