Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

According to a news article today at OneNewsNow, SEC employees are under investigation for viewing pornography on their work computers.  Action ranging from counseling to dismissal has already been taken against some employees.

Rick Schatz of the National Coalition for the Protection of Children & Families told OneNewsNow that pornography viewing has become a growing problem in the workplace, and companies are taking measures to rectify the issue.  According to Schatz:

One step taken by some companies and government agencies has been to install filters, while another has been to put in monitoring systems that keep track of employees' 'access denials'.   It reports all of the websites that an individual tries to visit and then rates the content of those websites for the sexual content.

The latter was how one person at the SEC was caught. The monitoring system revealed that he tried to visit nearly 1,800 rejected porn websites over a span of 17 days. In addition, roughly 24 other SEC workers have faced investigation for their pornography viewing from government computers.

Sexual misconduct investigations, oftentimes involving pornographic emails or website visits, are prudent for employers who suspect this type of conduct is going on.  This conduct should be promptly investigated and rectified, for many reasons, one of which is that the conduct could later appear as an allegation in sexual harassment claims by co-workers of the employee visiting the porn sites.  Imagine a female employee walking by a cubicle of a co-worker sitting at his desk viewing a streaming video of "Girls Gone Wild" on spring break.  You can bet if this female ever makes a hostile work environment sexual harassment claim, she will put this arrow in her quiver. Even though the conduct was not directed at her, she saw it, was offended by it, and could very likely claim that this type of misconduct was rampant and management "knew or should have known" about it.  

The sexual misconduct investigator will need to search suspected employees' computers.  As soon as this type of investigation begins, the subject computers should be locked down immediately to avoid tampering.  The investigator can work with an IT professional if necessary to insure a thorough search of emails and visited websites is conducted.

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A couple of weeks ago, I made a posting about the completion of the workplace investigation of District Attorney Michael Ramos in San Bernardino County.  Turns out that the scope of the investigation was limited to the issue of "retaliation".  We now have an intra-office memorandum from Andrew Lamberto, the Director of Human Resources for the County of San Bernardino, concerning the contents of the report.  

According to the Barb Stanton Radio Show, Director Lamberto indicates that the County is releasing redacted portions of the report to the public pursuant to the requirements of a California court case.  HR Director Lamberto states his reasoning and timeline, as follows:

Upon completion of our initial review, at the request of the Chairman of the Board of Supervisors we met to discuss the process of releasing the results of the investigation, as well as related legal issues. The following timeline was presented. ~ Receipt of report, January 13, 2010. ~ Meeting with Chairman to review process, January 14, 2010. ~ Release of investigation findings to complainant, January 15, 2010. ~ Release of Investigation findings to the Board of Supervisors, January 15, 2010. ~ Release of investigation findings to the public, January 15, 2010.

Since the complaint alleges misconduct by a public official, District Attorney Mike Ramos, the public has an interest in receiving the results of this investigation.
BRV, Inc. v. Superior Court (2006) 143 Cal App. 4th 742.  I am therefore providing to the Board of Supervisors excerpts from the investigation report below.  It is also my intent to release this memorandum to the public.

Although both the Board of Supervisors and the public have interests in receiving the investigation report, there are also substantial privacy interests that we are legally obligated to protect.  The claimant, witnesses and staff of the District Attorney's Office have such privacy interests. Therefore, upon advice of legal counsel and at the direction of the Chairman of the Board of Supervisors, only excerpts of the report are being released at this time.  We believe this is required by the BRV appellate decision.  After my office and County Counsel have had a more thorough opportunity to review and redact the report to protect the privacy interest of the claimant, witnesses and staff, we will be reporting to the Board of Supervisors regarding the release of report.

This memo underscores again why investigators should never "promise" complete confidentiality to participants in an investigation.  In determining how much of the report to release to the public, the County will be balancing the interests of the public's right to know versus the privacy interests of the participants in the investigation.

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On Monday, a jury awarded former Nashville Tennessee school employee Vicky Crawford $1.5 million after she claimed she was wrongfully terminated in 2003 because she cooperated in the sexual harassment investigation of a school official.  Last January, the U.S. Supreme Court ruled that Crawford could sue for "retaliation" even though she was not the one who brought forward the original sexual harassment claim.  

According to an Associated Press news story this week, Crawford was interviewed by sexual harassment investigators for the school system who were looking into other employees' allegations against the Employee Relations Director, Gene Hughes.  Court documents indicated that Crawford told investigators that Hughes would ask to see her breasts, grab his crotch saying, "You know what's up," and on one occasion pulled her head to his crotch.   When a human resources officer asked Crawford to cooperate in the investigation of Hughes, Crawford complied after the HR officer assured her she would be protected from retaliation.

According to the news story, the HR officer testified that no action was taken against the accused "because there were no witnesses to his behavior."  But, on the same day that the HR officer turned in her report on the allegations, "she also sent a letter to Metro Nashville's internal audit department informing them of concerns with the operation of Crawford's payroll department."  

Metro Schools claimed that Crawford (a 30-year employee) was terminated for poor performance. After she lost her job, she also lost her house and car, and she could not find a job because a news article said she may have embezzled money.    

We don't know all of the details of what came out in the trial last week, but this is another hard lesson to employers about retaliation (or even the perception of retaliation) against witnesses who cooperate in a sexual harassment investigation.

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I came across an interesting article by a federal district judge (Honorable John L. Kane in Denver) about "Judging Credibility" of witnesses.  Since judging credibility of the complainant, the accused, and the witnesses is something workplace harassment investigators need to do, I thought I'd share a couple thoughts from his article.

Judge Kane talks about "demeanor evidence" and the fact that it can mislead even though it is considered a reliable basis for finding credibility.  Does a witness you are interviewing during an investigation hesitate, stammer, or show fear in answering your questions? Such physical responses alone may not necessarily reflect untruthfulness.  

A shy or timid witness who has never participated in a workplace investigation may simply be fearful of the process.  Judge Kane gave a courtroom example worth noting:

Witnesses are observable only on the stand and for a very short time.  For most of them, testifying is an unusual experience, and they can be expected to be on edge. Judges and juries [and investigators] know little about what makes one person stammer or hesitate. There certainly is no time to delve into the subconscious of each witness.  Perhaps the examining attorney’s bright-red tie reminds the witness of her funny uncle or the bailiff’s bald head triggers repressed emotions toward the teacher who failed her in algebra.  Will she stammer or hesitate while she gets her thoughts in order?

This article simply reminds one not to jump to any quick conclusions about credibility based solely on a witness' slowness in answering a question or stammering responses.  

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According to SCI Companies Client Newsletter (HR Strategy) today, the EEOC reports that fiscal year 2009 was the second highest year on record for discrimination charges.  

SCI states:

. . . The EEOC received record numbers of charges alleging discrimination based on origin (11,134 charges), religion (3,386 charges) and sex-based discrimination (28,028 charges.)  However retaliation discrimination (33,613 charges) and race discrimination (33,579 charges) reached an all time high for this year. The EEOC also reported that through its enforcement, mediation and litigation programs, the agency recovered monetary relief for discrimination victims totaling over $376 million. The total number was 93,277, just slightly off the 2008 record numbers of 95,402, making the two-year annual average for 2008 and 2009 a staggering figure of 94,340 charges filed.

The goal of everyone should be to resolve employee issues amicably so as to AVOID litigation if at all possible.  Therefore, one thing employers can do when making broad employment decisions, is to conduct a statistical assessment to determine whether any disproportionate impact is occurring against members of any protected class employees.  If so, the employer should cautiously analyze its decisions to ensure they are supported by legitimate business reasons.  

If an employee later makes a retaliation / discrimination claim anyway, then the eventual workplace investigator should conduct a basic statistical assessment, if a sufficient number of true comparators exists, to determine if there is a disparate impact on any protected classes.  And again, if a disparate impact is found, the investigator should determine if the basis for the employer's actions are supported by legitimate non-discriminatory, non-retaliatory business reasons.  

It should be noted, that the scope of disparate impact liability under the federal Age Discrimination in Employment Act is narrower than that under Title VII (race, color, religion, sex, or national origin).  Under a Title VII claim, an employer must show that, although the policy or practice at issue may have had a disparate impact on a protected class of employees, the policy or practice was consistent with business necessity and there was no other way for the employer to achieve its goals.  However, in 2005, the U.S. Supreme Court (in Smith v. City of Jackson, Mississippi) held that in defending an age discrimination claim under the ADEA, an employer need show only that its practice or policy was based on reasonable factors other than age.  This is a significantly lesser standard than required under Title VII.  

A workplace investigator should be able to conduct a basis statistical assessment assuming there is a sufficient number of true comparators.  The investigator should also be aware of differing standards of disparate impact liability under the different statutes and what an employer needs to establish under the standards of liability.  I am not saying that the investigator should go into a discussion of the law in his/her written report.  What I am saying is that the investigator should have these standards in mind while conducting his/her analysis of the facts.  These "disparate impact" issues can then be analyzed by the investigator to help determine whether or not an employer has violated its own written policies prohibiting discrimination. 

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This is Part 4 of a 4-part posting on recommendations to consider before, during, and after a workplace investigation.

Most of the suggestions in this 4-part posting go beyond the bounds of what a workplace investigator is retained to do.  Sometimes the employer does not want written recommendations; however, the workplace investigator can offer many of the above recommendations verbally at the post-investigation stage as a means to help heal the environment.  The workplace investigator may also want to suggest some of the following remedial measures to help the employees set aside their differences:

1. The employer should designate someone, preferably a Human Resources professional or someone in a managerial capacity with whom the complainant is comfortable, to check back every week or so to see how the complainant is doing and to ask if any new or related problems have arisen. If no problems have shown up after a couple of visits, drop back in once a month to see how things are going.   It is better to be pro-active than to let a new situation mutate out of the original complaint.
2. Check back with the accused employee weekly or monthly to see if any coaching or further on-the-spot training is needed. The accused employee may still have pent up anger and may need to vent to someone who is privy to the situation and can lend a listening ear and offer sound, yet understanding, counseling.
3. Consider offering more frequent (or revised) harassment prevention training to employees and supervisors, and be sure that the training offered includes all forms (i.e., all protected classes) of discrimination, harassment, and retaliation.
4. Consider offering the accused employee and the complainant Employee Assistance Program (EAP) services, individualized coaching, or mentoring to help deal with any lingering emotions.
5. Determine whether company policies need to be revised to address particular issues that arose during this investigation if they are not adequately addressed within existing policies. Announce the changes to all employees.

To meet the important goal of healing any lingering tensions or wounds caused by a workplace investigation, an employer should, at the very least, communicate the results to the complaining employee and the accused employee without violating confidentiality. The employer should evaluate what the investigation has revealed about employee relations in general. The outcome may lead to revised company policies, new training, or re-evaluation of the complaint process, which every employer should welcome and embrace.

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Train Supervisors on What Constitutes Retaliation:  The U.S. Equal Employment Opportunity Commission (EEOC) has reported that claims including a retaliation charge rose by 23% in fiscal year 2008.   Vincent Cino, national director of litigation for Jackson Lewis LLP, says roughly 70% of discrimination suits handled by his firm include a retaliation claim.  These statistics are not surprising, considering that accused employees often harbor feelings of resentment following workplace investigations.

Resentment can lead to actions or words, which can be construed as retaliatory.   Suppose an employee complains that her supervisor has sexually harassed her.   The supervisor may be angry and hurt if he considers it a wrongful accusation.  The accused should be counseled that the complainant has a legal right to bring forward complaints of perceived harassment, discrimination, and retaliation, and may simply have a different perception of what occurred.

The accused employee should be cautioned that any inappropriate, post-complaint behavior or words can be construed as retaliation, regardless of whether the retaliation complaint has merit.  The accused employee should also be informed of possible examples of retaliatory conduct or language. Examples might include: (1) overloading the complainant with work, (2) removing work from the complainant, (3) stripping the complainant of highly valued or important duties or assignments, (4) changing the complainant’s work hours, (5) asking the complainant “off the record” why he/she made a formal complaint in lieu of working it out between themselves, (6) disparaging the complainant to others in the workplace, and (7) cutting desired overtime hours, to name a few.

Along these same lines, the manager who counsels the accused employee post-investigation should implement no major changes in work conditions without first consulting the human resources department and legal counsel.   Even a seemingly innocuous change may be perceived by the complainant as retaliatory.  If these changes are indeed necessary and based on legitimate business needs, it is a good idea to open the lines of communication with the complainant to talk the matter through before the changes are implemented.  The business reasons for the changes should also be carefully documented.   The human resources department can play an intermediary role in this process while the post-investigation healing period lingers.

Further, the accused employee should be reminded that witnesses, associates, and employed spouses or family members of the victim must not be retaliated against.  It is essential to educate supervisors and managers that protection extends to others beyond the complaining employee.

When training supervisors, or counseling them post-investigation, it is helpful to reassure them that it is natural to feel angry, fearful, or defensive toward an employee who accuses them of unlawful conduct.  However, they should be reminded that showing anger or acting upon it is more than merely unprofessional, it will exacerbate the problem and may give rise to a retaliation claim.

A thorough investigation procedure includes training managers and supervisors on how to deal with hurt feelings, embarrassment, and anger.

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This is the second of a 4-part posting concerning recommendations an employer should consider before, during, and after an employment investigation to resolve any lingering bitterness by employees.

Teachable Moment

Suppose an employee complains that her supervisor has exposed her to racial harassment. The investigation determines that while inappropriate remarks were likely made, the remarks do not qualify as legally cognizable harassment.  A common mistake might be to conclude the investigation with a finding of "no harassment" and go back to business as usual.  This is a mistake.  If an investigation uncovers discord between certain employees, the employer should consider this an opportunity to restore respect and dignity to the workplace, through diversity, anger management, or harassment training.   A workforce that gets along on a personal level is less likely to result in legal actions.  Thus, even if a workplace investigation concludes that the accused employee should not be disciplined or terminated, the employer would be wise to consider whether any group trainings could be useful, both to avoid reoccurrence and to foster harmony.

Separation of Complainant and Accused?

Following a workplace investigation, an employer may believe that the complaining employee and accused employee should be separated to limit their interactions.   Often, this means a job reassignment for one or both.  While many employees see this as a harmless measure, employers should only proceed with the most extreme caution, preferably with advice of counsel; reassigning a complaining employee to a different job position following a complaint could be viewed as retaliation and should only be done if there are no other practical options.   Even if you move a complaining employee to a position of equal pay and benefits, if there is reason to believe that the complaining employee's new job is less desirable or less prestigious, then a court could construe such a reassignment as retaliation.

For example, in Burlington Northern & Santa Fe Railway Co v. White [PDF] , a female employee complained about a supervisor's inappropriate comments about women.  Following an investigation, the employer moved her to another position to separate her from the supervisor.  The U.S. Supreme Court construed this move as retaliation, even though the new position had the same pay and benefits, because it could be seen as a less prestigious position.  For this reason, employers should only reassign a complaining employee if he or she wants reassignment, or if the reassignment cannot be construed as retaliation.  Further, the prior written consent of the complaining employee should be obtained, if possible.

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San Bernardino County approved a $140,000 contract with Santa Monica-based legal firm Curiale Hirschfeld Kraemer to conduct the sexual harassment investigation of SB District Attorney Michael Ramos.  Nearly six months later, the 200-page report is finished, according to a news article yesterday by Joe Nelson of The Sun.

According to the Sun article:

County spokesman David Wert said the report, which includes exhibits, is under review by county counsel and it won't be until next week until a decision is made as to how the report will be presented to the Board of Supervisors, Ramos and the public.  "Following the legal review, it will be determined in what manner it will be shared . . ." Wert said.

In August, Cheryl Ristow, a Redlands resident and investigative technician for the District Attorney's Office, filed a sexual harassment complaint with the county after coming forward publicly with news about her alleged 17-month affair with Ramos, from September 2003 through February 2005.

Ristow alleges that after her alleged affair with Ramos went public in a local newspaper in May, she was subjected to a rebuff by Ramos and a workplace vendetta that consisted of write-ups and other disciplinary action that prompted her take a stress leave. She hasn't returned to work since taking leave in July.

This report was 200 pages with exhibits.  I have heard rumors that there are some employers who are not exceptionally thrilled to receive a "long" investigative report, but sometimes being thorough requires an investigator to submit very lengthy reports.  One HR person at a seminar I attended groaned to the audience about reports running 50 pages!  Based on my conversations with colleagues, I believe my reports tend to run on the longer side.  I want to include as much relevant information as I can to help the parties see the whole picture, and I believe a detailed report will be helpful should the case wind up in litigation. Of course, I do provide an executive summary, which contains the most relevant facts and the analysis.

Further, and understandably, most employers and the complainant want the report competed "as soon as possible."   Sometimes an investigation can be done in a day or two if the matter is non-complex.  The complex cases require more time and usually involve multiple overlapping state and/or federal laws. 

It sounds like this investigation was complex given the time it took to complete, the length of the report, and the potential $140K legal invoice.  Plus, the fact that the accused harasser is a District Attorney probably made this investigator sure to quadriple-cross the I's and quadriple-dot the T's.  

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