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

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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This is the first of a 4-part post concerning what steps an employer and/or investigator can take to heal the bitterness in a workplace before, during, and after an employment investigation.   

Employers often think that the most important part of a workplace investigation is deciding whether a complaint of harassment or discrimination is valid and, if so, what corrective action needs to be taken.  While it is important for the employer to bring the investigation to a conclusion, it is equally critical for the employer to ensure that the complaining employee does not feel retaliated against and to heal any lingering tensions the investigation causes.   This may sound easy enough, but workplace investigations often lead to emotionally charged work environments, which in turn foster animosity and complaints of retaliation.

If a complaint of harassment, discrimination, or employee misconduct is dismissed, the complaining employee may feel further victimized.  If, on the other hand, the accused employee is disciplined, the accused employee may come to harbor feelings of resentment, especially if he or she feels wrongly accused.   Thus, regardless of the outcome, employers should take steps to heal wounds and restore egos. This 4-part posting provides steps employers can take to help return to business as usual.

Communicate with Employees:  Employers should always follow-up with both the complaining employee and the accused employee when the investigation concludes.  Although this seems obvious, many employers either forget to take this step, or intentionally refuse to do so out of confidentiality concerns.   Employers need not, and should not, disclose the exact findings of the investigation or the corrective action (if any), if doing so would jeopardize confidentiality or future investigations.  If the rumor mill churns out what transpired in the current investigation, then future victims will certainly think twice before bringing forward a complaint.  You do not want to provide future victims with a reason or excuse not to follow the company’s reporting policies.  It is important to communicate to all employees involved that each complaint has been fully investigated and that appropriate action (if any) has been taken to remedy the situation.

Communications back to employees should always take place as soon as possible. The virtue of prompt follow-up cannot be overstated. No matter how detailed or thorough an investigation may be, if a month passes between the complaint and the response, the employee will likely feel that the employer has not taken his or her complaint seriously.  At the least, let the complaining employee know that the investigation is ongoing and that things are happening.   An employer can help restore harmony to an emotionally-charged workplace merely by processing and investigating complaints in a timely manner.

Further, it is almost always a good idea to document your follow-up with the complaining employee, especially when the complaint is of a serious nature. Even if the investigation concludes that termination or discipline is unwarranted, the follow-up to the complainant should express gratitude for bringing the complaint to the employer's attention. It should also encourage the employee to continue using the internal grievance procedure should the alleged behavior continue, retaliation occur, or future issues arise.

It should be noted that most of these actions must come from the employer, but an employment investigator may make these types of recommendations to the employer as may be needed.

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In sexual harassment investigations, the words "harassment" and "discrimination" are oftentimes used interchangeably by the complainant and witnesses.  Even formal complaints drafted by the lawyers allege the same exact incidents to form the basis of the "Sexual Harassment Cause of Action" and the "Sex Discrimination Cause of Action."  

We know that sexual harassment is a subset of sex discrimination, but they are not supposed to always be completely identical claims, although they can sometimes be identical.  Occasionally, the line between the two is blurry and the workplace investigator (or EEO investigator) needs to determine whether the alleged conduct violates one or both policies of the employer.

In California, only the employer can be held liable for "discrimination", but the employer and any employee can be held liable for "harassment".   As a recent blog post by Attorney Jeff Polsky of the law firm Fox Rothschild said:

One rationale for the difference is that discrimination involves official actions of the employer (e.g. hiring, firing, promotion, demotion).  Harassment, in contrast, focuses on things an individual can do (or say) to make the work environment hostile.  

In the recent California Supreme Court case, Roby v. McKesson Corporation [PDF], the Court examined the legal definitions of each, as follows:

Discrimination:  Discrimination refers to bias in the exercise of official actions on behalf of the employer, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.

Harassment:  Harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. It focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.

The lower court (in Roby) had ruled that personnel management decisions could not support the harassment claim because they were part of the discrimination claim.  However, the Cal. Supreme Court in Roby disagreed with the idea that the same conduct couldn’t be both discrimination and harassment.  The Court reasoned that official employment actions (i.e. discrimination) can communicate a hostile message (i.e. can be harassing).  

A harassment investigator will need to very carefully evaluate the facts to determine whether "personnel decisions" (such as demotion, failure to promote, firing, transferring, etc.) were carried out in a way that sent a "harassing" message to the complainant, and if so, a managerial employee could potentially violate a "harassment" policy by virtue of a personnel decision. 

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Over the years, the National Labor Relations Board ("NLRB") has vacillated on the issue of whether "Weingarten rights" apply to nonunion employees.  Weingarten rights derive from the 1975 US Supreme Court case NLRB v. Weingarten, where the Court announced that unionized employees have the "right" to have a union representative present during certain investigatory interviews, thus the name "Weingarten rights".  

In July 2000, the NLRB extended the rights to nonunion employees so any employee under investigation or subject to possible discipline was now permitted to bring along a "co-worker" into the interview or meeting.  Thus, even in nonunionized settings, employers had to stop questioning until a representative arrived whenever an employee asked for one.

However, in 2004, the NLRB reversed itself in IBM Corporation [PDF] holding (by a 3-2 vote) that Weingarten rights apply only to unionized employees, and stated, "the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.”  Thus, since 2004, nonunionized employers have not had to permit co-worker representation during investigative interviews.    

But wait--we may not be done yet!  

An interesting blog caught my eye today at the Ohio Employer's Law Blog where attorney/blogger Jonathan T. Hyman writes,

"[The IBM case] was a tight 3-2 decision of a Bush-appointed NLRB.  Even the IBM majority recognized that one could reasonably interpret the National Labor Relations Act to reach the opposite conclusion.  Because President Obama has already appointed a new Chairperson, and will fill three other vacancies on the NLRB, there is a good chance this rule will change if the issue makes its way back to D.C. in the next three years."  [Emphasis added.]

President Obama appointed Wilma Liebman (D) in January 2009 to Chair the NLRB.  According to the BNA, Daily Labor Report, Liebman worked as an attorney for the Bricklayers and Allied Craftsmen from 1990 to 1993 and for the International Brotherhood of Teamsters from 1980 to 1989. An AFL-CIO Blog post states:  

"As an NLRB member over the past eight years, Liebman has challenged the Bush administration’s war on workers. The board’s Republican majority made it harder to form unions through majority sign-up, limited the ability of illegally fired workers to recover back pay and allowed employers to discriminate against union supporters in the hiring process."

AFL-CIO President John Sweeney says Obama made the right choice:

"America’s working men and women will finally have the fair and committed leader they deserve with Wilma Liebman as chair of the National Labor Relations Board. What a refreshing change it will be to have a labor board that aims to safeguard rather than blockade workers’ rights. Liebman will work to help the NLRB serve one of its key missions–to undergird all workers’ right to collective bargaining as a cornerstone of our economy and democracy."

For nearly two years, the normally five-member NLRB has operated with only two members. The vacancies, caused when former President Bush’s nominations to fill vacancies on the Board languished in Congress, forced the Board to take an unusual step under the advice of the Board’s general counsel. The Board declared that two members create a quorum, enabling the two members to continue issuing opinions while waiting for the remaining slots to be filled.   Since then the 2-member Board has issued more than 400 opinions.  

President Obama has sent three nominations to the Senate to fill the empty seats, and in October 2009, the Senate HELP committee advanced the nominees for full Senate consideration. So, as attorney Hyman notes, with President Obama appointing 4 of the 5 NLRB members, there is a good chance the extension of Weingarten rights to nonunionized employers may change again if the issue makes its way back to the NLRB again in the next three years.

Workplace investigators need to be mindful of the Weingarten case, and related NLRB rulings, to avoid the potential violation of an employee's rights by the employer.

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