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.

I just listened to a very informative podcast today by economist and statistical consultant Stephanie R. Thomas, Ph.D., titled Recruiting, Social Media and Disparate Impact, which I highly recommend to anyone reading this post, particularly, recruiters.  Ms. Thomas is the Director, Equal Employment Advisory and Litigation Support Division, for Minimax Consulting in Newtown, Pennsylvania.

Ms. Thomas notes that recruiters are increasingly using social media such as LinkedIn and Facebook for four main reasons:

  • The return on investment (ROI) is higher than other recruitment programs (value of the benefits greatly exceeds the cost).
  • Decreases vacancy rates because hiring can occur faster due to the speed of making direct contact with applicants over the Internet.
  • Increased responsiveness from applicants because social media sources contain less spam and provide direct contact.
  • Able to identify hidden candidates who cannot be found through traditional recruiting methods.

However, Ms. Thomas indicates that disparate treatment and disparate impact claims can arise by virtue of recruiters using social media, especially if social media is the exclusive method used

Disparate Treatment Claims

When applicants fill out job applications, they are not (supposed to be) asked questions that might reveal their age, religious views, familial or marital status, sexual orientation, etc.; however, people who maintain Facebook or LinkedIn profiles typically post a photo, and may disclose information about their family or marital status, religious views, sex, age, birthdate, race, ethnicity, etc. (to potential employers).   

Further, disparate treatment claims could arise when a recruiter checks out social media information for some applicants but not others, or if the recruiter evaluates data in different ways for different applicants.

Disparate Impact Claims

A disparate impact claim may arise if the recruiter relies exclusively on social media to search for job candidates.  For example, if only candidates who maintain a social media profile are considered, this will automatically screen out a large pool of the civilian labor population that does not maintain such profiles.  Ms. Thomas provides considerable statistical information on which races or ethnicities use and don’t use Facebook or LinkedIn.  It is quite enlightening!  

Whites and Asians are clearly over-represented on Facebook and LinkedIn in comparison to the civilian labor force.  She provides additional statistics on African-Americans and Hispanics.  

It certainly worth 15 minutes to give Ms. Thomas’ podcast a listen.

Employment attorney Jonathan Hyman writes an interesting blog post this week concerning statistics:  Why Statistics are So Important in Reduction in Force Cases.  

Attorney Hyman states that "the Older Workers Benefit Protection Act requires all releases and waivers of federal age discrimination claims provided as part of a severance program offered to a group of employees (such as in a reduction in force) to include a written disclosure of the job titles and ages of all eligible individuals selected for the program and all not selected for the the program."  

The EEOC, in its guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements, provides the following example of what this disclosure should look like:

Job Title

Age

# Selected

# Not Selected

(1)

25

2

4

 

28

1

7

 

45

6

2

 

63

1

0

(2)

24

3

5

 

29

1

7

 

As attorney Hyman correctly notes, when "the lone 63-year-old employee in Job Title 1 . . . [decides] whether to sign the waiver or pursue an age claim, the only fact he and his lawyer will have to go on is that within his job grouping, 7 out of the 9 oldest employees were RIFed, including the oldest employee."

Thus, the "raw statistics" will likely be the critical piece of information on which that employee will base his/her decision on whether to sue or accept the severance.    

However, raw statistics alone are insufficient to make a case of disparate treatment or disparate impact.  According to the federal Uniform Guidelines on Employee Selection Procedures (1978), adverse impact occurs when the selection rate for a protected class is less than 80% of the rate for the class with the highest selection rate, which is commonly known as the 80% rule or the four-fifths rule.   

The 80% rule is a fairly rudimentary calculation, and is not the final word on whether unlawful discrimination occurred.  If the 80% rule has been violated, then the employer should use a more statistically significant methodology to determine if there really is a statistically significant adverse impact on the protected group and if the sample size is statistically significant.  A workplace investigator may need to consult a statistician if this issue arises.  

In general, however, when the 80% rule is violated, employers have four alternatives:

  1. Abandon the procedure;
  2. Modify the procedure to eliminate adverse impact;
  3. Validate the job-relatedness of the selection procedure (e.g., validation studies, detailed records, and fact finding about alternatives with less adverse impact);
  4. Justify the procedure as a business necessity.

Thus, a workplace investigator investigating an "adverse impact" claim should conduct some fact finding concerning alternatives 3 and 4–  if the 80% rule is violated.  If the 80% rule is NOT violated, the query may stop there.  However, an investigator could still decide to investigate alternatives 3 and 4 at his/her discretion.

An interesting article came out this week on Jobsinformed titled "Seven Steps to Successful Workplace Investigations" by employment attorney Patricia C. Perez, SPHR, founder of Puente Consulting.  

In her Step 3, "Gathering Documentation", Ms. Perez summarizes the relevance of the investigator viewing the personnel files of the complainant and the accused.  She writes:

You should automatically pull personnel files for both the complainant and the accused.  The complainant’s file will tell you if he or she has ever filed other grievances, and what, if any, action was taken.  It will also show if the person has a history of complaining about work-related issues or if he or she has an outstanding record but recently received a bad performance evaluation.  This could indicate there is something else at play in the situation.  As for the accused, the file will show if there is any prior history.  It will tell if this is his or her tenth allegation of sexual harassment or it will include accommodations that state how fair he or she is in the workplace.

This is very good advice.   Along these same lines, but slightly different, I suggest in my article "Practice Pointers for Workplace Investigations" (co-written with Los Angeles employment attorney Nancy Bornn and posted on the CAOWI website) that the investigator should interview the complainant before viewing the personnel file so as to avoid any real or perceived bias towards the complainant at the time of the interview.  

Other documents the investigator should obtain, if relevant, are internal policy manuals, employee handbooks, e-mail communications, computer histories, cell phone records, security records, computer log in sheets, sign in books, and any other documents relevant to the facts of your incident(s) under investigation.

An article posted in the National Law Review on January 31, 2010, titled "Top 5 Pitfalls to Avoid When Conducting Workplace Investigations" by employment attorney Julie Vogelzang is worth the read.  She lists and discusses the following pitfalls:

PITFALL NO. 1:  Failing to Promptly Begin the Investigation

She notes that "one of the worst things a company could face is a jury trial where a juror believes that the companied lagged in looking into the issues, thus leading to the potential for ongoing misconduct that was not stopped immediately."

PITFALL NO. 2:  Failing to Use an Experienced and Neutral Investigator

She notes that some "employers err if they randomly assign the investigation to someone without experience [because] . . .  the employer can face potential exposure for the failings of the investigator, in the form of claims of an inadequate investigation or punitive damages aimed at punishing the employer."

PITFALL NO. 3:  Punishing the “Victim”

She notes that it is the "better practice to temporarily transfer or suspend the accused with pay pending the investigation. This way, the person bringing the complaint is not punished or put in any disadvantaged position for having come forward."

PITFALL NO. 4:  Not Having a Reporting Structure in Place

She notes that "it is prudent to set up an ‘investigation team’ at the outset. This is so that the investigation and any actions taken do not fall exclusively on the shoulders of one person. If there are layers of management involved, issues can be vetted by a group rather than one person, and any subsequent claims against the investigator of wrongdoing, lack of thoroughness, bias, etc. are significantly minimized."

PITFALL NO. 5:  Promising Confidentiality

She notes that the "investigator will be reporting the statements to management; they may be sharing the statements with other witnesses so that a thorough investigation can be conducted; and if there is ever a lawsuit brought, the statements will likely need to be disclosed at that time."

I do appreciate the idea of an investigative team approach; however, only one employer I have ever worked with utilized it– the United States Postal Service ("USPS").  The USPS has an EEO Analyst (working from an isolated department, who has no knowledge of the parties involved) review each investigative report prepared by the EEO investigator before the "Final Report" can be submitted.  The Analyst tries to make sure there are no holes in the investigation, for example, have all relevant questions been asked, have all relevant witnesses been interviewed, and have all relevant documents been obtained.  While this may lengthen the process somewhat, potential claims against the investigator of wrongdoing, lack of thoroughness, and bias can be minimized. 

Workplace investigations involving Public Safety Officers are governed by special procedural rules set forth in the Public Safety Officers Procedural Bill of Rights Act ("POBR").  

Specifically, California Gov’t Code section 3303 says:

When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.  For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

The POBR contains many requirements, more than contained in this posting, but highlights of some of the "investigation" procedures are:

  • The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the officer.  
  • If the interrogation does occur during off-duty time of the officer, the officer shall be compensated for any off-duty time in accordance with regular department procedures.
  • The officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation.
  • All questions shall be asked by and through no more than two interrogators at one time.
  • The officer under investigation shall be informed of the nature of the investigation prior to the interrogation.
  • The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue.
  • The officer shall be allowed to attend to his or her own personal physical necessities.
  • The officer shall not be subjected to offensive language or threatened with punitive action.
  • However, an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.
  • No promise of reward shall be made as an inducement to answering any question. 
  • No statement made during interrogation by an officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding.
  • The complete interrogation of an officer may be recorded. If a tape recording is made of the interrogation, the officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.
  • The officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.
  • No notes or reports that are deemed to be confidential may be entered in the
    officer’s personnel file.
  • The officer shall have the right to bring his or her own recording device and record any and all aspects of the interrogation. 
  • If prior to or during the interrogation of an officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights (Miranda rights).  
  • Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
  • The representative shall not be a person subject to the same investigation.
  • The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation
    for non-criminal matters.

If an officer under interrogation refuses to answer a question and “takes the Fifth,” the investigator must inform the officer of the protections offered to him or her.   This instruction is called the “Lybarger Warning,” named after the California Supreme Court case. In such circumstances, officer should be provided, in writing if possible, a Lybarger instruction, for example:

You have been asked to provide information as part of a Police Department [insert employer’s name] investigation.  Failure to fully cooperate in this investigation may subject you to disciplinary action.   Please be advised that in order to protect your Fifth Amendment right against self-incrimination in a criminal proceeding, any information you provide as part of this investigation cannot be used against you in any subsequent criminal proceeding.

Any investigator commencing an investigation involving a public safety officer should carefully read and understand California Gov’t Code sections 3300-3311 before doing any work (note, Firefighter’s have their own separate Firefighter’s Procedural Bill of Rights).

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.

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.

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.

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.