1998 was a banner year for sexual harassment matters: Five cases were heard by the Supreme Court, all five of which are foundational for the journey that continues today. The two that are relevant to employee investigations are Burlington Industries vs. Ellerth, and Faraghar vs. the City of Boca Raton.While both cases discuss the offending conduct alleged, they also set procedural standards, for which the cases are largely cited. The procedural matters include: 1) an employer’s affirmative defenses, and 2) the need to conduct investigations.
Employers can assert that employees failed to take advantage of internal reporting requirements, and thus could prevail in Court. However, to do so, the organization must demonstrate that the complainants knew two things: first, they had knowledge of the employer’s sexual harassment prevention policies; and, second, that they had a duty to come forward to report the offending conduct. Also, these affirmative defenses are not available if the conduct resulted in “tangible, adverse job-related actions.”
Duty to Investigate:
It is because of the last statement that employers usually conduct investigations since virtually all allegations are made because of the adverse actions alleged in the complaints. “I didn’t get the hours I wanted because the boss came on to me and I rejected her;” “I don’t feel comfortable delivering medications to the nursing station because three of them teased me about being gay;” or, “I didn’t get the promotion because the boss called her ‘honey’ and ‘babe’ during after-hours drinking. They must be sleeping together.” If no adverse action is specifically stated, one can conclude that the individual at a minimum is feeling “uncomfortable,” or he or she would not have complained. On that basis alone, it’s always a good idea to investigate.
What to Consider:
- The investigation must be undertaken soon after the complaint is made;
- The investigation must be neutral;
- A decision on how to handle the employees involved during the investigation should be made;
- Both the employees should be interviewed and the questions to be asked should be determined;
- A decision on credibility – who is/are the truthteller/s – must be made;
- A determination must be made on what, if any, disciplinary action is appropriate; and,
- The employer needs to decide what to tell the so-called victim at the conclusion of the investigation.
Today’s Blog – Part #1:
To give the subject matter the justice it deserves, today’s blog will cover items 1 – 3; while next week’s blog will cover items 4 – 7.
Once a complaint is made it is important to conduct the investigation as soon as possible. A good rule of thumb is to start within 72 hours, or three days after the complaint was made. The person who hears the complaint – which is typically an in-house person identified as one of many able to hear such complaints – should listen carefully, take notes, and advise the individual that the organization takes these allegations seriously, and thus a neutral investigation will be undertaken as soon as possible.
Digging Deeper – Preparation:
- To position the employer to rely upon an affirmative defense, there must be a rule, policy or procedure that is communicated and understood.
- Typically, there is a policy that spells out the organization’s commitment to a workplace free of any and all forms of harassment, discrimination, a hostile work environment, etc.
- The policy is routinely reviewed during onboarding, and the employee is free to ask questions, and then signs for having received and understood the policy.
- Multiple internal individuals should be listed – by position – to allow choices for an employee to make to enable him/her to feel comfortable in reporting.
- All of those identified as the “go-to” individuals should be trained in the process of conducting an initial intake.
Investigation Must be Neutral:
Given the nature of the allegations, an initial decision for the organization to make is whether to use an in-house investigator, or to hire an external expert. Among others, the employer will want to consider the severity of the allegations, the power positions of the respective parties, and the skill-set and confidence level of the internal individual who would be asked to conduct the investigation. If an external investigator is retained, it is also helpful to have an attorney engage the individual to enable the confidential investigatory report to be covered by attorney-client privilege.
Digging Deeper – Practical Considerations:
- In assessing the severity of the allegations, the organization should consider whether the offending conduct is verbal, joking, social media, pictorial, or whether it is “hands-on” – groping, touching, grabbing, offering a “quid pro quo,” as in “if you do this (name the sexual act), this will (or will not) happen,” a la “sleep with me and you will be promoted,” or “if you don’t sleep with me, I’ll fire you.”
- Did the offending conduct happen once, or many times?
- Where did it happen? Were there witnesses?
- In assessing the relative power positions of the parties, were the allegations made against a colleague, supervisor, manager, executive, CEO?
- What is the relationship of the internal investigator to the person/s accused?
- What about that pesky little thing called organizational politics; would it be better to have an internal or external investigator?
Investigatory or Administrative Leave During Investigation:
The employees involved– the so-called victim or victims and the so-called perpetrator or perpetrators – should, at a minimum, be separated during the investigation, with the perpetrator/s advised that any form of retribution or retaliation would be viewed as considerably more egregious than the underlying charge. For this reason and others, many employers place the perpetrator/s on administrative leave during the pendency of the investigation, and up to when a determination as to whether disciplinary action, if any, is warranted.
Digging Deeper – Issues to Consider:
- Any form of retribution or retaliation is considered worse than the underlying allegation. Thus, an organization could be completely exonerated from the complaint; yet, if the (understandably) upset person or persons against whom the allegation/s was or were made – or anyone else for that matter – engages in any form of retaliation, the organization will be found to have violated the Civil Rights Act of 1964.
- Many organizations avail themselves of the administrative leave to ensure the neutrality of the investigation OR, and perhaps more importantly, the appearance of neutrality in the investigation.
- Administrative or investigatory leaves can be paid or unpaid. If unpaid, and there is discipline meted out at the end, the discipline could be retroactive to the unpaid leave. If no disciplinary action is taken, the moneys would be restored. Cautionary note: if an unpaid leave is imposed and there are no disciplinary actions meted out, that could spell allegations by the exonerated/so-called perpetrator/s.
Part I Conclusion:
There are a number of issues to consider when an allegation is made of any form of discrimination, harassment, and/or hostile work environment involving a protected individual or group as enumerated in Title VII, the Civil Rights Act of 1964. The issues covered in today’s blog include, as follows: 1) does the organization have a rule, policy or procedure prohibiting workplace harassment? 2) Is it published and understood? 3) who are the internal “in-take” individuals for initial complaints? 4) are there a sufficient number to ensure that at least one would allow the complaining employee to feel comfortable coming forward? 5) are all of the individuals trained in the intake procedure? 6) when should the investigation begin? 7) should the investigation be conducted in-house or with an external expert? 8) should the so-called perpetrator or perpetrators be allowed to stay on-site, or should they be placed on administrative or investigatory leave for the duration of the process?
Much to ponder.
Next week’s blog, Part II, will cover all of the following: 1) who should be interviewed, in what order and how should the questioning proceed? 2) how does one determine who is the truth teller? 3) what about disciplinary action? 4) how does an organization handle fear of retaliation? 5) what does the complainant learn about workplace actions taken, if any, at the conclusion of the process?
For more information, read my guest article on HR.Com: Tips For Identifying, Preventing, And Handling Workplace Sexual Harassment: Maneuvering the wild and woolly world of workplace attractions and relationships in the #MeToo era.
Or, if you are in southern California, take my two-hour, mandatory sexual harassment prevention, anti-bullying and anti-gender identification bias training on July 29th. For more information, click here.