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Tackling the Investigation of a Sexual Harassment Complaint
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Let’s Talk about Sex, Baby! – What to Consider When Tackling the Investigation of a Sexual Harassment Complaint

By: Elizabeth Carter; Hill, Hill, Carter, Franco, Cole & Black, P.C.; Montgomery, Alabama 

Submitted by the Labor & Employment PAC

In the words of a late partner of mine who was full of great wisdom – “Gal, you cannot go wrong handling sex cases because they are never going away.”  How true!  However, it seems that this growth industry has come in the form of requests for internal sexual harassment complaints--not EEOC charges and lawsuits.  The EEOC reports sexual harassment charges are slightly down in the last few years.  Some attribute this decrease to the Vance v. Ball State University decision, in which the US Supreme Court adopted a narrow opinion of the term “supervisor” for Title VII purposes (further decreasing the number of incidents wherein an employer could be held strictly liable for the actions of the alleged harasser). 133 S.Ct. 2434 (2013). 

The Vance Court held that the plaintiff’s alleged harasser was not her “supervisor” for purposes of Title VII liability because the alleged harasser lacked the authority to take any tangible employment action against the plaintiff.  Accordingly, the Vance Court found the defendant employer could not be liable unless it was negligent in reacting to harassment it knew or should have known about. Whether the Vance decision decreased the rate of sexual harassment claims, one truth remains: employers should not rest peacefully at night.  As my wise old partner said, sex cases are never going away. And, the internal complaints of sexual harassment are on the rise. This trend is attributable to a number of likely factors, including the proliferation of electronic devices and social media not only in our daily lives, but in our offices, as well as an increased number of individuals who are complaining about bullying behavior based on stereotyping that was traditionally not considered “sexual” harassment.  As a result, employers must develop effective, modern-day policies (including BYOD (“bring your own device”) policies, centralize investigation efforts and discipline decisions to ensure consistency for all employees, and be savvy about how investigations are handled and recorded. Every good employment lawyer has his or her take on how best to skin that cat.  Here is my take on some practices I recommend based on pitfalls I have encountered when investigating and/or litigating sexual harassment cases in my practice.

1.       React immediately to isolate the problem

Many employers become so concerned with “investigating” who is telling the truth that stopping the potential problem is forgotten.  Many employers say: “well, we do not know yet whether Employee X did anything wrong.”  True, but the employer needs to immediately implement corrective measures to stop the problem before investigating whether or not there is a problem.  One of the most incriminating pieces of evidence in a sex harassment case is that the alleged harasser had continued access to the complainant during a lengthy investigation.  So, treat it like a fire: “Stop, drop and roll!”   Get the alleged harasser away from the complainant immediately whether it be through a temporary reassignment or paid administrative leave.  Also be mindful that if the complainant is the individual moved, the move cannot be one that rises to action considered illegal retaliation.  (Remember that a transfer can be considered an adverse employment action for retaliation purposes if the transfer would compel a reasonable person to conclude the move involved a serious reduction in prestige and responsibility, even if there is no decrease in pay). 

2.       Be Consistent and Choose the Right Investigator

A critical issue that employers must consider is how to be consistent in receiving sexual harassment complaints and how those complaints are investigated. This is especially true for large employers with a larger number of decisionmakers in various areas of the company or even country.  This consistency will ensure that employees do not ultimately complain that they were mistreated in the handling of their complaint.  The ramifications of inconsistent investigation handling can range from employee morale issues to claims of lack of corrective action to disparate treatment claims.  To that end, claims against upper management must be just as thoroughly investigated as a claim against a lower-level employee.  Claims made by men against women must be taken just as seriously as claims by women against men. The same is true for claims made by employees of the same sex as the alleged harasser. 

In order to make decisions in a consistent and fair manner, consider too who is the right person to conduct the investigation.  If the Human Resources Director receives a claim against her boss, it is not a good idea for her to investigate the person to whom she reports.  If a female employee is making a claim that involves a particularly sensitive and horrific claim such as rape, a man might not investigate.  Hiring an outside investigator costs money, but is often the smart option.  Always be able to articulate why the person chosen was asked to investigate and explain what safeguards were followed to ensure consistency with policies and practices no matter the assigned investigator.  Make sure the outside investigator is provided all information about employer policies and that parameters are established prior to the investigator beginning his or her investigation. One final note on selection of investigators: be mindful that lawyers can ultimately become witnesses if they conduct investigations on behalf of their clients.  Consider this possibility when determining who will investigate and who will give advice about the factual findings from an investigation.

3.       Start at the beginning

It is shocking how many internal investigations did not begin with a detailed interview of the employee making the complaint.  This misstep often occurs because the employer, who has known the alleged harasser for years is “shocked” that the alleged harasser “would do such things.”  It doesn’t matter.  Nor does it matter that the complainant “had the chance to write as much as he/she wanted in the statement we required.”  The written statement requested when an employee is making a sexual harassment complaint should not be viewed as a potential “gotcha” moment.  No matter the length of the written complaint, a detailed and open-ended interview should be conducted with the complainant.  Never ever allow the interview to be narrowed to four or five simple questions with no follow up or adequate opportunity to provide details.  The complainant interview should always be conducted first (otherwise, how does one know what to investigate) and include, at least, the following: (1) each and every complaint (this means the down and dirty details and do not decide non-sexual complaints do not count as bullying can be sexual harassment depending on the circumstances), (2) against whom (for example, is there a perpetrator? Did someone else allow it to happen as well? - -who were all of the participants? Who does the complainant feel should have known or should have done something about it?, (3) where did it occur, (4) when did it occur and how often—this is not just the date(s), but the time(s) or time of day, (5) any witnesses to the alleged harassment occurring, and (6) the name of any person the complainant feels has information relevant to the complaints being made against the alleged harasser.  If the complainant reveals an issue during the interview that was not in the narrative statement of the complaint, do not ignore it.  Never “decide” what the scope of the complaint should be.  Make sure steps are taken to explore each aspect of the complaint and each piece of information that could help the employer corroborate or disaffirm the claims of harassment or any other inappropriate conduct. 

4.       Don’t Pre-Judge the Accused; Get Detailed

It is not always best practice to interview the accused second, but most of the time, it is probably most practical.  Just remember, the investigator should not decide the accused is guilty after interviewing the complainant.  Listen and be detailed, no matter how uncomfortable.  Each and every claim must be explored.  It is also a good idea to ask the accused to write a response to the charges.  Ask the accused the same who, what, when, where and why questions as the complainant.  NOTE:  Always reiterate to the accused that retaliation is strictly forbidden and explain what retaliation means.  This explanation should include practical examples of the forms retaliation could take in that particular work environment (which includes but is not limited to the accused doing nothing but telling his/her work buddies who then lash out on his or her behalf).

5.       Don’t decide that witnesses are pointless

Even if the complainant identifies a witness that does not seem to have information the investigator would find pertinent, interview them anyway.  Don’t find yourself explaining why you did not find the witness important. Talk to them. All of them.

6.       Don’t be hesitate to make a decision

If at the conclusion of the investigation there is no concrete evidence of what happened, it is still acceptable to make a decision based on the credibility of the information provided.   No matter how difficult this seems at the time, it is a lot less trouble than explaining what happened in later litigation whether it be from a complainant that claims nothing was done about a claim of harassment or a terminated accused who claims unfair treatment. With that said, note that if it is a he said/she said and all avenues have been exhausted to find the truth, take action anyway.  This action can be in the form of a letter of understanding reiterating the sexual harassment policy and noting the concern that a complaint was made and reminding that serious disciplinary action, including termination, will be taken if sexually harassing behavior is found.  This action could also include informing the complainant he/she should report immediately any continued conduct.

7.       Talk to Outside Counsel and Document the Investigation and Results

Sometimes an employer might want to seek guidance from outside counsel about the direction of an investigation but certainly at the conclusion of an investigation, outside counsel should be consulted.  This is especially true when the employer decides the investigation ended in nothing more than a he said/she said (see #6) and/or it is unclear what corrective remedial measures, if any, should be implemented.   After consultation, document the results.  This documentation should reflect all action taken to investigate, all considerations made before reaching a conclusion, any conclusive findings and what action will be taken.  And, at the expense of being repetitive, be consistent about how this documentation is created and maintained.

8.       Don’t stick all the documentation in the Complainant’s Personnel File

Make sure that the complainant’s statement, witness statements and other investigative documents are not placed in any employee’s personnel file which is often accessible to many different individuals.  The investigative information should be held confidentiality in an incident file, not with standard personal documents.

9.       Don’t promise confidentiality

It is good practice to ensure employees the employer will do everything in its power to maintain confidentiality to the extent it can, but make it clear that this is not always possible when conducting an investigation.  The employer’s no tolerance policy regarding retaliation should be explained, but no complainant, accused or witness should be guaranteed confidentiality.  It is simply not possible without knowing where the investigation will lead and is quite frankly wading in the territory of other problems. 

10.   One last thought – remain open-minded to the bitter end and fix it fast!

One never knows the end of the story.  Over and over the end turns out much different than one expects - - the complainant told only a part of the story and the whole truth is actually horrid OR the complainant was a compliant lover now scorned OR witnesses conspired to lie to protect a supervisor It is so easy to form opinions which then negatively impact the effectiveness of the investigation.  The investigation should be open to all possible outcomes and result in thoughtful corrective action taken immediately!  

Complaint

By: Elizabeth Carter; Hill, Hill, Carter, Franco, Cole & Black, P.C.; Montgomery, Alabama 

Submitted by the Labor & Employment PAC

In the words of a late partner of mine who was full of great wisdom – “Gal, you cannot go wrong handling sex cases because they are never going away.”  How true!  However, it seems that this growth industry has come in the form of requests for internal sexual harassment complaints--not EEOC charges and lawsuits.  The EEOC reports sexual harassment charges are slightly down in the last few years.  Some attribute this decrease to the Vance v. Ball State University decision, in which the US Supreme Court adopted a narrow opinion of the term “supervisor” for Title VII purposes (further decreasing the number of incidents wherein an employer could be held strictly liable for the actions of the alleged harasser). 133 S.Ct. 2434 (2013). 

The Vance Court held that the plaintiff’s alleged harasser was not her “supervisor” for purposes of Title VII liability because the alleged harasser lacked the authority to take any tangible employment action against the plaintiff.  Accordingly, the Vance Court found the defendant employer could not be liable unless it was negligent in reacting to harassment it knew or should have known about. Whether the Vance decision decreased the rate of sexual harassment claims, one truth remains: employers should not rest peacefully at night.  As my wise old partner said, sex cases are never going away. And, the internal complaints of sexual harassment are on the rise. This trend is attributable to a number of likely factors, including the proliferation of electronic devices and social media not only in our daily lives, but in our offices, as well as an increased number of individuals who are complaining about bullying behavior based on stereotyping that was traditionally not considered “sexual” harassment.  As a result, employers must develop effective, modern-day policies (including BYOD (“bring your own device”) policies, centralize investigation efforts and discipline decisions to ensure consistency for all employees, and be savvy about how investigations are handled and recorded. Every good employment lawyer has his or her take on how best to skin that cat.  Here is my take on some practices I recommend based on pitfalls I have encountered when investigating and/or litigating sexual harassment cases in my practice.

1.       React immediately to isolate the problem

Many employers become so concerned with “investigating” who is telling the truth that stopping the potential problem is forgotten.  Many employers say: “well, we do not know yet whether Employee X did anything wrong.”  True, but the employer needs to immediately implement corrective measures to stop the problem before investigating whether or not there is a problem.  One of the most incriminating pieces of evidence in a sex harassment case is that the alleged harasser had continued access to the complainant during a lengthy investigation.  So, treat it like a fire: “Stop, drop and roll!”   Get the alleged harasser away from the complainant immediately whether it be through a temporary reassignment or paid administrative leave.  Also be mindful that if the complainant is the individual moved, the move cannot be one that rises to action considered illegal retaliation.  (Remember that a transfer can be considered an adverse employment action for retaliation purposes if the transfer would compel a reasonable person to conclude the move involved a serious reduction in prestige and responsibility, even if there is no decrease in pay). 

2.       Be Consistent and Choose the Right Investigator

A critical issue that employers must consider is how to be consistent in receiving sexual harassment complaints and how those complaints are investigated. This is especially true for large employers with a larger number of decisionmakers in various areas of the company or even country.  This consistency will ensure that employees do not ultimately complain that they were mistreated in the handling of their complaint.  The ramifications of inconsistent investigation handling can range from employee morale issues to claims of lack of corrective action to disparate treatment claims.  To that end, claims against upper management must be just as thoroughly investigated as a claim against a lower-level employee.  Claims made by men against women must be taken just as seriously as claims by women against men. The same is true for claims made by employees of the same sex as the alleged harasser. 

In order to make decisions in a consistent and fair manner, consider too who is the right person to conduct the investigation.  If the Human Resources Director receives a claim against her boss, it is not a good idea for her to investigate the person to whom she reports.  If a female employee is making a claim that involves a particularly sensitive and horrific claim such as rape, a man might not investigate.  Hiring an outside investigator costs money, but is often the smart option.  Always be able to articulate why the person chosen was asked to investigate and explain what safeguards were followed to ensure consistency with policies and practices no matter the assigned investigator.  Make sure the outside investigator is provided all information about employer policies and that parameters are established prior to the investigator beginning his or her investigation. One final note on selection of investigators: be mindful that lawyers can ultimately become witnesses if they conduct investigations on behalf of their clients.  Consider this possibility when determining who will investigate and who will give advice about the factual findings from an investigation.

3.       Start at the beginning

It is shocking how many internal investigations did not begin with a detailed interview of the employee making the complaint.  This misstep often occurs because the employer, who has known the alleged harasser for years is “shocked” that the alleged harasser “would do such things.”  It doesn’t matter.  Nor does it matter that the complainant “had the chance to write as much as he/she wanted in the statement we required.”  The written statement requested when an employee is making a sexual harassment complaint should not be viewed as a potential “gotcha” moment.  No matter the length of the written complaint, a detailed and open-ended interview should be conducted with the complainant.  Never ever allow the interview to be narrowed to four or five simple questions with no follow up or adequate opportunity to provide details.  The complainant interview should always be conducted first (otherwise, how does one know what to investigate) and include, at least, the following: (1) each and every complaint (this means the down and dirty details and do not decide non-sexual complaints do not count as bullying can be sexual harassment depending on the circumstances), (2) against whom (for example, is there a perpetrator? Did someone else allow it to happen as well? - -who were all of the participants? Who does the complainant feel should have known or should have done something about it?, (3) where did it occur, (4) when did it occur and how often—this is not just the date(s), but the time(s) or time of day, (5) any witnesses to the alleged harassment occurring, and (6) the name of any person the complainant feels has information relevant to the complaints being made against the alleged harasser.  If the complainant reveals an issue during the interview that was not in the narrative statement of the complaint, do not ignore it.  Never “decide” what the scope of the complaint should be.  Make sure steps are taken to explore each aspect of the complaint and each piece of information that could help the employer corroborate or disaffirm the claims of harassment or any other inappropriate conduct. 

4.       Don’t Pre-Judge the Accused; Get Detailed

It is not always best practice to interview the accused second, but most of the time, it is probably most practical.  Just remember, the investigator should not decide the accused is guilty after interviewing the complainant.  Listen and be detailed, no matter how uncomfortable.  Each and every claim must be explored.  It is also a good idea to ask the accused to write a response to the charges.  Ask the accused the same who, what, when, where and why questions as the complainant.  NOTE:  Always reiterate to the accused that retaliation is strictly forbidden and explain what retaliation means.  This explanation should include practical examples of the forms retaliation could take in that particular work environment (which includes but is not limited to the accused doing nothing but telling his/her work buddies who then lash out on his or her behalf).

5.       Don’t decide that witnesses are pointless

Even if the complainant identifies a witness that does not seem to have information the investigator would find pertinent, interview them anyway.  Don’t find yourself explaining why you did not find the witness important. Talk to them. All of them.

6.       Don’t be hesitate to make a decision

If at the conclusion of the investigation there is no concrete evidence of what happened, it is still acceptable to make a decision based on the credibility of the information provided.   No matter how difficult this seems at the time, it is a lot less trouble than explaining what happened in later litigation whether it be from a complainant that claims nothing was done about a claim of harassment or a terminated accused who claims unfair treatment. With that said, note that if it is a he said/she said and all avenues have been exhausted to find the truth, take action anyway.  This action can be in the form of a letter of understanding reiterating the sexual harassment policy and noting the concern that a complaint was made and reminding that serious disciplinary action, including termination, will be taken if sexually harassing behavior is found.  This action could also include informing the complainant he/she should report immediately any continued conduct.

7.       Talk to Outside Counsel and Document the Investigation and Results

Sometimes an employer might want to seek guidance from outside counsel about the direction of an investigation but certainly at the conclusion of an investigation, outside counsel should be consulted.  This is especially true when the employer decides the investigation ended in nothing more than a he said/she said (see #6) and/or it is unclear what corrective remedial measures, if any, should be implemented.   After consultation, document the results.  This documentation should reflect all action taken to investigate, all considerations made before reaching a conclusion, any conclusive findings and what action will be taken.  And, at the expense of being repetitive, be consistent about how this documentation is created and maintained.

8.       Don’t stick all the documentation in the Complainant’s Personnel File

Make sure that the complainant’s statement, witness statements and other investigative documents are not placed in any employee’s personnel file which is often accessible to many different individuals.  The investigative information should be held confidentiality in an incident file, not with standard personal documents.

9.       Don’t promise confidentiality

It is good practice to ensure employees the employer will do everything in its power to maintain confidentiality to the extent it can, but make it clear that this is not always possible when conducting an investigation.  The employer’s no tolerance policy regarding retaliation should be explained, but no complainant, accused or witness should be guaranteed confidentiality.  It is simply not possible without knowing where the investigation will lead and is quite frankly wading in the territory of other problems. 

10.   One last thought – remain open-minded to the bitter end and fix it fast!

One never knows the end of the story.  Over and over the end turns out much different than one expects - - the complainant told only a part of the story and the whole truth is actually horrid OR the complainant was a compliant lover now scorned OR witnesses conspired to lie to protect a supervisor It is so easy to form opinions which then negatively impact the effectiveness of the investigation.  The investigation should be open to all possible outcomes and result in thoughtful corrective action taken immediately!  

 

Author Elizabeth Carter is a shareholder at the Montgomery law firm Hill, Hill, Carter, Franco, Cole & Black, P.C.  She has represented public and private employers for over 20 years in litigation related to employment matters, constitutional law and educational issues. She has also provided extensive training to multiple types of employers, advised clients regarding policy development and conducted investigations on behalf of employers.

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