What Should an Employer Do When the Complainant Refuses to Participate in the Investigation?

A common scenario I encounter occurs where an employee makes a complaint—such as of harassment, discrimination, or some other form of misconduct—but when it comes time to sit down for an interview with the investigator, the complainant refuses to participate. Sometimes this happens right at the outset. Other times, an employee cooperates initially and then disengages partway through, refusing to answer follow-up questions.

It’s an uncomfortable position for the employer. The complaint can’t simply be set aside. So what are the options?

The Employer’s Duty to Investigate Doesn’t Disappear

Employees may have legitimate reasons for stepping back, such as fear of retaliation, distrust of the process, emotional exhaustion, or simply a change of heart about wanting to pursue the matter.

Nonetheless, once an employer has notice of alleged misconduct such as harassment, discrimination or retaliation—whether through a formal complaint, a report from a supervisor, or other credible information—it has an independent obligation to look into it. That obligation exists regardless of whether the complaining employee ultimately cooperates.

The Employer’s Options

• When a complainant refuses to participate, the employer should first reach out to understand the refusal, and offer reassurance about the process, without pressuring them.
• If the complainant is still steadfast in their refusal, the employer may require the complainant to participate as a condition of continued employment, just as it could for any other employee, and discipline them if they refuse to cooperate. However, this is generally not recommended, although it will always depend on the circumstances. For example, the optics of disciplining an alleged sexual harassment victim who refuses to participate are much different from disciplining an employee who has complained that a coworker is defrauding the company.
• The employer may also proceed without the complainant’s participation, using whatever information is available, such as the employee’s verbal or written complaint, relevant documents, and interviews with other employees.

The Recommended Approach

The most defensible response is usually to confirm with the employee in writing that they are declining to participate, and let them know that the employer intends to proceed with the investigation using the information already available.

From there, the investigation should continue on its normal track, such as with interviewing other witnesses, reviewing relevant documents and communications, and evaluating any other evidence that exists.

The investigation report should note plainly and neutrally that the complainant was invited to participate and declined, along with a brief, factual description of what outreach was made. This isn’t about characterizing the employee negatively; it’s about creating an accurate record of what happened and why the findings rest on the evidence that was available.

This approach respects the complainant’s autonomy rather than pressuring or penalizing them for stepping back, which helps guard against a retaliation claim.

A Few Practical Tips

• Keep the tone of any outreach to the complainant neutral and supportive, not accusatory or pressuring.
• Document the outreach itself (dates, method, what was communicated) in addition to the ultimate refusal.
• Don’t assume the refusal means the underlying complaint was untrue. Evaluate the available evidence on its own merits.
• Leave the door open. If the employee changes their mind later, be prepared to incorporate their input even after the investigation is underway.