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

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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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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EEO Investigators should examine all kinds of evidence in an investigation:  direct evidence, circumstantial evidence, and statistical evidence (if possible, but usually not practical if expert opinion is required).  

In a recent 9th Circuit case (EEOC v. The Boeing Co.), the Equal Employment Opportunity Commission (“EEOC”), on behalf of two Boeing employees, argued that the trial court erroneously granted summary judgment in favor of Boeing.  The employees alleged discrimination and retaliation under Title VII of the Civil Rights Act of 1964 after they were RIF'd.  Boeing had terminated these two employees after they received low scores on reduction-in-force (“RIF”) assessments, which Boeing used to evaluate employees when determining whom to lay off.  

The 9th Circuit held that the EEOC had introduced adequate evidence from which a reasonable jury could have concluded that the reasons Boeing advanced to justify its employment actions were pretextual.  Accordingly, the 9th Circuit reversed and remanded the case for trial.  See EEOC v. The Boeing Company, Case No. 07-16903 (9th Cir. 2009).

What can an EEO investigator take from this case?  This case demonstrates how investigators should look closely at the "legitimate non-discriminatory reason" or "legitimate non-retaliatory reason" provided by the employer, and determine whether any circumstantial or direct evidence is contrary to the proffered reason for the adverse employment decision.  In the Boeing case, the 9th Circuit believed that the facts demonstrated enough evidence for a reasonable jury to believe that Boeing's proffered reason (low test scores on RIF assessments) for its actions was really a "pretext" (i.e. fake or phony excuse) for discrimination.

The Boeing Court explained that two ways exist to determine "pretext":

“[E]ither directly by persuading the [fact-finder / EEO Investigator] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

Concerning one of the two employees, the Court found "direct" evidence of sexually discriminatory animus because of demeaning comments a decision-maker had made about women in general.   The Court noted that the employee's poor RIF evaluation scores, which led to her termination, were pretextual because her supervisor in her new department had previously referred to her as a “little girl” and made a “joking” inquiry as to whether she “broke a nail.”  Although these comments occurred two years prior to her firing, and Boeing argued that these comments were merely inadmissible “stray remarks," the Court held that the supervisor's comments constituted at least some evidence of discriminatory animus. 

The Court added that in RIF cases, an employee can “show through circumstantial, statistical or direct evidence that the termination occurred under circumstances giving rise to an inference of . . . discrimination.”   Here, the Court also found "specific and substantial circumstantial evidence" of pretext in that the decision-maker:

• Initially refused to transfer the employee at all;
• Made promises to transfer her to the department she requested;
• Agreed to transfer her, but only to a different department to which no other engineers from her department had been transferred in recent years; and
• Assured her that she would be exempt from the RIF process during her training in order to induce her to accept the transfer despite her explicit (and not unwarranted) concern that the transfer might significantly increase her risk of termination.

In short, a workplace investigator needs to look at all the direct and circumstantial evidence carefully to determine whether the employer's "legitimate business reason" was a pretext.  In an EEO investigation, the investigator is the fact-finder and must evaluate credibility of the witnesses and try to access the real motivations of the decision-maker.  The investigator needs to ask the complainant employee to articulate all the reasons why he/she believes the employer's alleged business reason is a really a façade (or pretext) for a hidden discriminatory motive.

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