What Makes an Investigation Defensible?

“Windshield!”

That was a frequent declaration in an office of my professional youth. My boss at the time was frequently reminding me and my coworkers to keep our eyes up for the risks ahead, not just the “allegator closest to the boat.” We often mixed metaphors, but the message was clear: It’s not just the risk in front of you that you need to be aware of—there are others right behind that one and new ones ready to pop up at any moment.

And when it comes to workplace, civil rights, and Title IX matters, the risks are plentiful, which means there are many opportunities for those tasked with making the business decisions regarding these cases to lose the forest for the trees. Like an off-roader trying to avoid one tree, business leaders often fail to keep their eyes forward and land in a thicket up the trail.

When it comes to the defensibility of an investigation, consistency, fairness, and clarity—and the documentation to demonstrate those virtues—will prove invaluable for the investigator.

A note for Title IX practitioners: This is especially salient right now. Institutions are operating under the reinstated 2020 regulations following the January 2025 vacatur of the 2024 Final Rule, with the likelihood of further federal rulemaking on the horizon. Whatever framework governs your next investigation, the principles below will outlast it.

Consistency at the macro level

Years ago, a party in an investigation threatened to sue an organization I was working with to force their desired outcome (not an uncommon phenomenon, as this was a very large organization that had multiple in-house employment attorneys). In this case, the party was seeking an exemption from a policy on clinical placement, which, by policy, was only granted under specific circumstances. One such circumstance was if there was a determination that an individual was subject to misconduct that interfered with their ability to meet their clinical responsibilities. The investigation I was responsible for was intended to make that determination for the institution (here, the allegation was of race discrimination).

However, as soon as the party threatened a lawsuit, the institution twisted itself into knots to provide the policy exception requested as well as circumventing other established practices to placate this individual. All this because there was a new risk—the threat of litigation. The party did not sue, but what just happened? The executive making the call just compromised the integrity of multiple policies including their clinical placement policy and the policy governing the resolution of discrimination complaints. Now, every time those policies are implicated in business decisions, there will be precedent for exceptions.

What does this mean? That executive’s myopic fixation on avoiding one risk created a slew of new risks because how that executive wields their newfound discretion to create policy exceptions can now be challenged. Perhaps they don’t grant the same exceptions to an individual who was seeking pregnancy accommodations, or for someone who filed a complaint of gender discrimination. Those are now bases for challenging the consistency and fairness of decision-making that may not have been available had the leader weighed the risks differently. 

Fairness at the micro level

I share the myopic leader story because it is a great example of why consistency matters. Consistency and fairness are at the heart of defensible investigations. 

Fairness has two faces. The first is even-handedness: treating all parties and witnesses with respect and kindness, and visibly not playing favorites. If someone feels like you’re out to get them or out to get someone else, your supposedly neutral process will lose credibility. People will not trust the process to be fair, and you will lose engagement from the people you should most want to bring concerns forward.

The second is procedural fairness: giving everyone involved an opportunity to be heard and respond to the allegations, and identifying and neutralizing biases so they do not advantage or disadvantage one party over the other.

Treated together, kindness, consistency, and fairness are the most powerful tools on the investigator’s toolbelt. Applied steadily across a case, they produce procedural justice—and with it, engaged parties and trust in the process across your constituent populations. Beyond those internal benefits, they also build a defensible record. Parties are less likely to challenge a process they experienced as fair, and decency and even-handedness go a long way toward demonstrating an investigator’s neutrality.

Clarity and documentation—explaining “why”

Remember when your math teacher used to always tell you to “show your work”? Turns out that’s a valuable bit of advice for workplace, civil rights, and Title IX investigators. An investigator must document their decisions and reasoning to demonstrate not only the thoroughness of their work, but also the logic behind it. Dismissing one witness’s statement while relying heavily on another’s without a clear explanation as to why could be seen as sloppiness or bias that could raise questions about the entire process. Questions that could be easily avoided with a quick sentence or two to explain the relative treatment of the evidence gathered.

An investigator’s goal should be to provide a clear answer to the question, “what happened?” and often also “was a policy violated (based on the appropriate evidentiary standard)?” This means being diligent about how information is summarized and presented in the investigation report, which may mean leaving out some otherwise fascinating information that you learned that is just not relevant to the question that needs to be answered. It could also mean making a tough call on credibility to determine what is borne out by the totality of the evidence. Maintaining clarity and documenting your thought process will help guide the way. These can be difficult calls to make, but that’s the work.

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Defensible investigations are built to withstand scrutiny because they are grounded in consistency, fairness, and clear, documented reasoning. They do not depend on volume, confidence, or institutional authority. They depend on method.

That is what organizations need when the stakes are high.

Not a perfect process. A disciplined one.

Navigating that risk forest is not a solo exercise. If you need an experienced investigator to conduct a disciplined, defensible investigation—or a thinking partner as you work through how to handle one—reach out to Grey Zone.

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