Can I Refuse to Participate in a Workplace Investigation?

Most likely, your company can require you to take part in its investigation.

By , J.D. · UC Berkeley School of Law

Question: Can I be required to participate in a workplace investigation?

A coworker complained about sexual harassment in our department. She told the HR Director that some of the guys tell dirty jokes and make sexist remarks and that our manager joins in.

She named me as a witness to some of these incidents. I have seen and heard the comments she complained about, and they are completely juvenile. But the truth is, I just ignore them.

My coworker feels like they are affecting her work and preventing the men in our department from taking her seriously.

But I don't feel this way, and I really don't want to get involved. I don't want to take sides in this idiotic mess, and I don't want to get on the wrong side of our manager. Can the company require me to answer questions about her complaint?

Answer: Yes, your company can require you to take part in its investigation.

Most likely, your company can require you to take part in its investigation. After all, the only way the company can find out what's going on -- and take steps to remedy the problem -- is by talking to the employees involved.

The laws that prohibit discrimination and harassment on the job recognize that these standards are enforced mainly through employee complaints. The government doesn't send auditors and investigators out to every workplace, hunting for bias and mistreatment. Instead, enforcement depends on employees coming forward. That's why these laws also prohibit retaliation against employees who complain of harassment or discrimination.

Retaliation Prohibited

The Supreme Court has found that these retaliation provisions protect not only the employee who originally makes the complaint, but also employees who participate in workplace investigations as witnesses. You can't be treated negatively (for example, fired, demoted, transferred, or given worse assignments) because you answer questions or provide information about your coworker's complaint.

This protection doesn't extend to an employee's refusal to participate in an investigation, however. Retaliation laws cover employees who oppose workplace practices they believe to be unlawful discrimination or harassment, or who participate in discrimination or harassment proceedings (including internal company investigations). These laws do not apply to employees who won't answer questions or otherwise participate in an investigation.

Can You Be Fired for Refusing to Take Part in an Investigation?

If you're an at-will employee, as most employees are, you can be fired for any reason that is not illegal. Illegal reasons to fire an employee include discrimination, harassment, and retaliation.

Essentially, your employer generally isn't violating the law if it fires an employee for refusing to participate in an investigation. But if it takes any negative action—termination, demotion, transfer—in retaliation for taking part in a workplace investigation, your employer would be in violation of the law.

Employer Policies on Investigations

Some employers have policies requiring employees to participate in investigations of workplace misconduct. Even without such a policy, however, your employer probably has the right to insist on your participation.

In fact, a number of courts have ruled in favor of employers who have disciplined or even terminated employees for their refusal to cooperate in a workplace investigation.

Going Forward

Rather than testing your employer's will on this issue, consider having a frank conversation with the HR department. Express your concerns about participating in the investigation. For example, if you fear retaliation by your manager or being shut out by your coworkers, say so.

Your company has a legal obligation to prevent this type of mistreatment. Similarly, if you are worried that the investigation will polarize your department, let the HR staff know. They can take steps to minimize gossip and wasted time by, for example, holding interviews offsite, completing the investigation quickly, and raising this concern with your department directly, at the outset.

Contact an Attorney

If you've been the victim of retaliation for participating in a workplace investigation, consider contacting an employment law attorney to discuss your legal options.

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