I am once again offering training to human resources professionals, attorneys, and private investigators on how to conduct legally defensible harassment, discrimination, and retaliation investigations in the workplace.  Although the training will be geared towards these professions, attendees of any background are welcome to attend.  Basic knowledge of sexual harassment and discrimination law is helpful, but not required. Questions and problematic scenarios are welcomed!

Date: Thursday, November 15, 2012

Time:  11:45 a.m. to 2:15 p.m.

Location:  Bentley’s Steak & Chop House, 162 South Rancho Santa Fe Road, Encinitas, CA 92024

Cost: $295.00

No Walk-ins. Please make arrangements to prepay by November 8, 2012, by contacting Debra Reilly at debra@wpinvestigations.com.

Dear Readers,

I recently wrote an article, along with employment attorney Nancy Bornn, providing practice pointers on conducting internal workplace investigations.  It is published today on the SHRM (Society for Human Resource Management) website.

If you are not a member of SHRM, you can also read the article for a limited time on the California Association of Workplace Investigators Website.

You have just learned that an employee is complaining of sexual harassment by a co-worker via email.  What should you do first, or at least at the very top of the list?  

Take steps to insure that the accused harasser does not have access to any of the evidence supporting the alleged victim’s claims.  For example, you want to immediately preserve evidence before emails can be deleted from computers and servers.  The IT staff of the employer should be notified immediately so the evidence can be procured off the employer’s servers.  

I once investigated a case where the accused harasser was in charge of IT and all of the settings on the company’s server were scheduled to delete emails off the server after only a few hours.  IT experts were later hired by the company and even they could not retrieve that evidence!  Another investigation could have been resolved easily by viewing the surveillance tapes of a particular hallway and office entrance on a particular date.  However, the employer did not preserve the video evidence and it was taped over before I was ever called upon to conduct the investigation.  

Employers might want to consider adding a "preservation of evidence" policy to any policies they might already have concerning workplace investigations.  For instance, some employers have a written policy in their employee handbook that requires all employees to cooperate in internal investigations of the employer.  The additional policy might state that employees are prohibited from destroying any documentation that could in any way be relevant to a workplace investigation should they be put on notice of an investigation.

Once the employer and/or investigator determines which documents may be relevant during the investigation, the employer might want to issue a "preservation order" to each witness or party who may have access to any relevant evidence.  If any employee is later found to have knowingly tampered with the evidence, after receiving a preservation order, it makes it much easier to terminate that employee since the employee was put on notice.

Another consideration is to block the accused harasser from accessing his computer or the network from off-site.  An employee with computer software allowing him/her to access the employer’s computer network from offsite (LogMeIn, pcAnywhere, GoToMyPC, and many others) needs to be locked out by the IT staff immediately.  If the accused harasser is to be placed on administrative leave pending the outcome of the investigation, this computer lock out should be done before the accused harasser is advised of the charge against him/her.  

Each of these steps should be witnessed by the investigator and documented in the investigator’s report or file notes.

The investigator also needs to insure that the chain of custody is documented for physical evidence obtained. The investigator should keep note of when and how physical evidence was obtained, who has handled it, who else was present (witnesses) during the evidence collection process, where and how it was transported, and where it has been stored during the pendency of the investigation up until the time the matter is resolved.  

Failing to properly document the chain of custody could result in information becoming inadmissible in court.

Last week, Chief Judge of the Northern District of Iowa, Linda Reade, issued an order requiring the EEOC to pay to Defendant CRST Van Expedited the sum of $4.56 million in attorney’s fees, expenses, and costs.   Defendant CRST is a trucking company that the EEOC had sued in federal court alleging that a large number of female employees had been sexually harassed.  Judge Reade based her attorney’s fees award on what she termed a "sue first and ask questions later" litigation tactic.  

The Workplace Prof Blog provides a brief summary of the facts:

 

One employee of CRST filed a charge in 2005, alleging that she had been subject to sexual harassment at CRST, including both hostile environment and quid pro quo claims.  The EEOC did not complete its investigation within 180 days and that woman did not seek a right to sue letter.  In 2007, the EEOC brought an action against CRST on behalf of the woman and unspecified others.  The woman intervened, and as other plaintiffs were found, they were added, and they intervened. At some point, the EEOC identified about 270 women it said had been harassed. It made 150 of them available to CRST for depositions.

Last summer and fall, the district court dismissed claims on behalf of some of the women and entered summary judgment against the claims on behalf of most of the rest and on behalf of the EEOC itself for a variety of reasons–mostly that the EEOC failed to provide sufficient evidence from which a reasonable jury could infer a pattern or practice of tolerating sexual harassment.  That order was reported at 611 F. Supp. 2d 918, and claims on behalf of sixty-seven women remained. Ultimately, the court dismissed the action as to those women because the EEOC had not investigated the charges of these women before it filed the action, nor did it attempt to conciliate their claims and avoid litigation. It ended up creating a huge burden on CRST and the court [emphasis added].

The EEOC can pursue a pattern or practice case, including seeking monetary relief on behalf of a group of individuals, without meeting the Rule 23 requirements for class certification.

In rejecting the EEOC’s "pattern or practice claims," in a Feb. 9, 2010, decision, Judge Reade wrote, "The EEOC’s criticisms of CRST’s anti-sexual harassment policy are not well-taken. . . .  To show a pattern or practice of unlawful employment practices, the EEOC must do more than quibble with alleged deficiencies in CRST’s anti-sexual harassment policy and practices.  It must cite legal authority.”

Judge Reade found that the award of $4.56 million in fees against the EEOC was warranted because the EEOC, among other things, “acted unreasonably by suing CRST without conducting a proper investigation.”  

Well–now we know that not just employers can get into trouble for failing to investigate properly.

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.

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.  

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. 

The Civil Rights Office of the United States Department of Transportation ("DOT") has a written policy that helps its employees understand how one can tell if conduct is "unwelcome."  I like the DOT’s policy because it gives employees some practical advice on how to convey that inappropriate sexual comments or conduct is unwanted.  

The policy states that "Only unwelcome conduct can be sexual harassment.  Consensual dating, joking, and touching, for example, are not harassment if they are welcomed by the persons involved." 

"Conduct is unwelcome if the recipient did not initiate it and regards it as offensive.  Some sexual advances (“come here Babe and give me some of that”) are so crude and blatant that the advance itself shows its unwelcomeness.  In a more typical case, however, the welcomeness of the conduct will depend on the recipient’s reaction to it."

Outright Rejection:  The clearest case is when an employee tells a potential harasser that conduct is unwelcome and makes the employee uncomfortable.  It is very difficult for a harasser to explain away offensive conduct by saying, “She said no, but I know that she really meant yes.”  A second-best approach is for the offended employee to consistently refuse to participate in the unwelcome conduct.  A woman who shakes her head “no” and walks away when asked for a date has made her response clear.

Ambiguous Rejection:  Matters are more complicated when an offended employee fails to communicate clearly.  All of us, for reasons of politeness, fear, or indecision, sometimes fail to make our true feelings known.  A woman asked out for a “romantic” dinner by her boss may say, “Not tonight, I have a previous commitment” when what she really means is “no way, not ever.”  The invitation is not inherently offensive, and the response leaves open to question whether the conduct was truly unwelcome.

Soured Romance:  Sexual relationships among employees often raise difficult issues as to whether continuing sexual advances are welcome.  Employees have the right to end such relationships at any time without fear of retaliation on the job, so that conduct that once was welcome is now unwelcome.  However, because of the previous relationship, it is important that the unwelcomeness of further sexual advances be made very clear.

Sexual harassment investigations sometimes fall within a gray area where the comments were "boorish" or "childish."  It may not be readily apparent if the conduct was consensual, or if the Complainant was truly offended but the Complainant neither did or said anything to convey to the accused that he/she was offended and that the harasser should stop.  A sexual harassment investigator will need to probe into the past relationship of the parties to determine if they have had past interactions which might have led the accused harasser to believe that his/her conduct was welcomed.  Soured romantic relationships, especially if they are on-again, off-again pose a particular set of problems that require close scrutiny by the sexual harassment investigator.     

"Neutrality" is the name of the game.  In the recent California case of Nazir v. United Airlines, Inc., the court gave strong cautionary advice about choosing the right workplace investigator.  

The Nazir court raised the point that this particular employer (United Airlines) had extensive rules and policies about the investigation of employee complaints.  One of United’s policies stated that if “there is any reason you would not be perceived as an unbiased investigator, choose another investigator.”  In the Nazir case, a company management employee (who had some prior negative interactions with the complainant in the workplace) took the lead in conducting the internal investigation.  He also engaged a co-employee to assist him in the investigation; however, this "assistant investigator" described himself as a labor relations person, who had been assigned to assist the lead investigator in the facilities maintenance department.  The assistant investigator attended most staff meetings in the lead investigator’s department and considered the lead investigator to be “an internal customer” of his, that is, a person he "served", according to the Nazir court.

Based on the underlying facts the Complainant alleged against the lead investigator, the Court found that the "lead" investigator was a person "who at least inferentially had an axe to grind" with the Complainant.  Further, the "assistant" investigator was someone who worked in a capacity of "serving" the lead investigator; thus, the Nazir court held that "such an investigation can itself be evidence of pretext. . . . [and] such investigation could “exploit a disciplinary process predisposed to confirm all charges.”

The Nazir court juxtaposed the two investigators (described above) against the investigator used in another California case, Silva v. Lucky Stores, Inc. (1998).  In the Silva case, the investigation was "by a well-trained human resources representative, who had no connection with the accused employee. The investigator carefully followed Lucky’s written policy, and interviewed no fewer than 15 employees during a month-long investigation.  And in doing all that, the investigator asked, “relevant, open-ended, non-leading questions.”

How do you, as an employer, avoid this problem?  

  • If you are going to choose a company employee to conduct the investigation, in lieu of going to an outside investigator, be sure to pick someone who has never been involved in any prior negative incidents with the Complainant.  Further, the investigator should not be anyone who "witnessed" any of the incidents alleged by the Complainant because he/she is likely to be automatically biased.  
  • Select an investigator who is not in the Complainant’s "chain of command"— either up or down.  If the investigator reports to the Complainant, the investigator’s neutrality is compromised.  In short, you cannot investigate your boss without worrying that you can be fired if you make findings against your boss.  Similarly, even where the accused employee reports to the investigator, a supervisory investigator may be inclined to bury facts under the rug because the supervisor may not want to have his supervisory/management skills tarnished by a finding that a bad situation was allowed to occur or fester under his/her watch. On the other hand, a supervisor who runs a great department with no employee problems is looked upon favorably by upper management.
  • In short, you want someone who is far enough from the situation to be impartial and who has experience investigating these types of issues.