Labor/Employment
Jul. 30, 2002
Thorough Sexual Harassment Investigation Can Limit Liability
Focus Column - By Javier H. Van Oordt - Individuals define sexual harassment in many different ways. However, identifying the underlying facts that gave rise to the claim is the first step in determining whether actionable sexual harassment has occurred. An employer must investigate the allegations, understand what kind of conduct it is looking for, conduct the investigation and document the results.
By Javier H. Van Oordt
Individuals define sexual harassment in many different ways. However, identifying the underlying facts that gave rise to the claim is the first step in determining whether actionable sexual harassment has occurred. An employer must investigate the allegations, understand what kind of conduct it is looking for, conduct the investigation and document the results. These activities provide both a defense to a potential lawsuit and a way to prevent future incidents.
Employers must respond immediately and appropriately to all complaints of harassment by conducting a prompt and thorough investigation. This is also important if the complaint results in litigation. An employer can claim a valuable affirmative defense if it exercised reasonable care to prevent and promptly correct sexually harassing behavior and if the employee unreasonably failed to take advantage of any preventative or corrective opportunities. Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998).
In addition, the California Supreme Court has defined a number of elements that will constitute a good-faith investigation by an employer: fair notice to the accused of the nature of the alleged offense, fair opportunity for the accused to offer evidence in defense, adequate investigation of all reasonable sources of information, and a reasoned conclusion supported by substantial evidence. Cotran v. Rollins Hudig Hall Int'l Inc., 17 Cal.4th 93 (1998).
The two major laws that govern sexual harassment, the federal Title VII Civil Rights Act of 1964 (42 U.S.C. Section 2000e; see Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986))and California's Fair Employment and Housing Act (Government Code Section 12940), both prohibit discrimination based on gender, the basis for sexual harassment law. These laws are generally similar, and the case law of one often is used to interpret the other.
An employer can use the legal definition of sexual harassment in determining whether it has occurred in the workplace. The Equal Employment Opportunity Commission, the federal administrative agency that handles harassment complaints, defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." 29 C.F.R. Section 1604.11(a).
This conduct constitutes sexual harassment under the following circumstances: submission to such conduct is made a term or condition of employment; submission to, or rejection of, such conduct is used as a basis for employment decisions affecting individuals; or such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, offensive or "hostile" work environment. 29 C.F.R. Section 1604.11(a).
The California Fair Employment and Housing Commission, which enforces state law on the subject, further defines potentially harassing behavior: verbal harassment, such as epithets, derogatory comments or slurs, repeated romantic overtures, sexual comments and jokes or prying into one's personal affairs; physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or visual harassment, such as derogatory cartoons, drawings or posters, lewd gestures or leering. 2 C.C.R. Section 7287.6(b)(1).
An employer also should be aware that courts do not consider certain conduct to rise to the level of sexual harassment. Conduct generally not considered to be sexual harassment includes the following: common friendly interactions, mutually flirtatious contact and behavior that does not offend a reasonable person. Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75 (1998).
The law requires an employer to take immediate and appropriate action when it knows, or should have known, that sexual harassment has occurred. EEOC Compliance Manual (CCH) Section 615, Paragraph 3114, at 3282; DFEH v. Livermore Joe's Inc., FEHC Dec. No. 90-07 (1990). Unfortunately, the law is not so clear regarding what constitutes appropriate action. A common interpretation of the applicable statutes indicates that an employer must take effective action to stop further harassment and to redress any effects of harassment.
An investigation should begin whenever an employer receives a complaint, observes inappropriate conduct or is otherwise informed of inappropriate conduct that can be construed as harassment. Because all situations differ, the employer should consider, analyze and plan the investigation according to the unique circumstances at the time of the investigation.
All investigations, however, must be prompt, impartial, confidential and thorough. Any remedial or disciplinary action taken as a result of the investigation must be reasonably calculated to lead to resolution of the matter and elimination of the offending conduct. The following is a checklist for investigating a claim:
• Prepare for the investigation. The employer should review the complaint or the observed conduct, all relevant information, all pertinent company policies and procedures, the personnel files of the parties involved and notes and other information regarding the claim or conduct.
The company should create a preliminary list of witnesses to be interviewed and make a determination regarding when and where the interviews will take place. The investigation should be conducted in as confidential a manner as possible in order to allow for forthright interviews.
• Determine who will investigate. It is preferable for investigations to be conducted by someone trained to do so, such as a member of management, a human-resource professional or consultant, an in-house or outside attorney or a professional investigator. If outside attorneys, consultants or investigators are used, the investigation may be subject to the notice and reporting requirements of the federal Fair Credit Reporting Act. 15 U.S.C. Section 168 et seq. This issue should be considered before deciding who will investigate.
If possible, the same individual(s) should be used to conduct all employer investigations. This ensures consistency and helps avoid claims of disparate treatment or favoritism. In selecting investigators, the employer should minimize any actual or perceived bias for or against any of the parties or witnesses. Investigators who are not intimidating to the person making the claim also are preferred.
• Meet with the person making the claim. An employer should make the claimant feel comfortable by reinforcing an appreciation for the claimant's candor and willingness to come forward. The employer should tell the claimant that the company's primary concern is providing a safe working environment for all employees and that the company will not tolerate any retaliation against the claimant as a result of the complaint, the investigation or any remedial action that is taken. The claimant must be encouraged to report any such activity immediately.
The employer also should inform the claimant that, although steps will be taken to preserve confidentiality to the greatest extent possible, third-party witnesses likely will need to be interviewed.
The claimant should be encouraged to provide all information relating to the allegations. The claimant must provide as much detail as possible, including dates, times, places and whether the offending conduct was witnessed by third parties. The claimant should tell his or her story in a narrative fashion: It is not the investigator's task to contradict, argue or pass judgment on the allegations.
The investigator should advise the claimant to maintain confidentiality regarding his or her complaint and any issues discussed during the investigation.
• Interview the individual accused of harassment. This is the opportunity to obtain the accused's side of the story. Once again, the employer should ask for as much detail as possible, including dates, times, places, activities and witnesses. It should be explained to this individual that, at this point in the investigation, there are only allegations and that no determination has been made about the truthfulness of those allegations.
The accused must be aware that the employer needs honest answers and cooperation and that the accused is not to retaliate, intimidate or otherwise harass the complaining employee or anyone else involved in the investigation, nor is the accused permitted to encourage others to do so.
• Determine whether additional interviews are needed. If the accused admits the allegations, no further witnesses normally will need to be interviewed. In most cases, however, the allegations are denied. If so, additional witnesses should be interviewed to assist the investigator in his or her assessment of the situation.
• Interview additional witnesses. Once again, the investigator should explain the purpose of the interview and the process, being sure to discuss confidentiality and retaliation. To the extent possible, the investigator should attempt to elicit information without revealing the identity of the complaining or accused parties or the allegations. If the witness knows about each incident or allegation, the employer should obtain as many factual details as possible and request the names of any other potential witnesses.
The witness can be told that the interview is being documented and that he or she will be provided a copy for review for accuracy. It is also advisable that the witness make corrections and sign the documentation.
• Make a determination of findings. The employer should weigh the facts, including the credibility of the parties and witnesses, and should attempt to determine what conduct occurred and in what context. For harassment complaints, the employer should determine whether the conduct was "unwelcome" and whether the behavior constituted discrimination or harassment as defined by law.
The employer should identify whether the accused has been disciplined previously for similar behavior and should determine the appropriate remedial action. Such action or discipline should be consistent with the prior similar situations. The employer should consider the severity, frequency and pervasiveness of the conduct, any third-party corroboration of the accusation, the response of the accused and his or her willingness to accept fault in order to create an appropriate remedial action.
In addition, the corrective action needs to ensure that the behavior will not be repeated in the future. Appropriate corrective action can include oral warnings, written warnings, counseling, suspension, transfer of the accused to a different department or location or termination of employment. In addition, the employer should determine whether companywide training or counseling should be conducted.
• Prepare a final written report. The employer must document in a final written report the findings and all corrective action taken.
• Communicate the results to the claimant. The employer once again should inform the claimant that no retaliatory conduct will be tolerated and that the claimant immediately should report all such conduct to the appropriate individuals. The employer should explain what remedial actions it will take and should encourage the claimant to report any additional inappropriate conduct or discrimination.
• Follow up with the claimant. The employer should follow up with the claimant every few weeks for several months to ensure that the matter has been resolved and that no retaliation has occurred.
The employer can use this recommended checklist when conducting an investigation. Obviously, items can be added or deleted depending on the factual circumstances. The prime goal is to determine fact because, in this type of litigation, the possible range of identified facts may result in a nonactionable claim or one with potentially large monetary consequences to the employer.
Javier H. Van Oordt is an attorney at Klinedinst Fliehman & McKillop in Santa Ana.
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