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INVESTIGATING
COMPLAINTS OF SEXUAL HARASSMENT
GOALS
1. Maintain adequate sexual harassment policies.
2. Maintain proof of employees’ familiarity with policies.
3. Respond promptly and effectively to complaints.
By:
JUDITH D. WOLFERTS, J.D.
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Floor
Salt Lake City, Utah 84111
(801) 521-9000
January 24, 2005
I. PRE-PLANNING FOR A FUTURE SEXUAL HARASSMENT INVESTIGATION.
A. Have a policy on dating/office romances
1. Deal with relationships between employees and supervisors.
2. Deal with relationships between co-workers.
3. Set workplace behavior guidelines.
B. Have a clear dress code
1. Equal treatment.
2. Ornamentation in visible body piercings can be prohibited.
a. gender-neutral
3. Employees’ role as representative of the City.
4. Revise policy when needed.
5. Apply policy to everyone.
C. Adopt strong and clear policies prohibiting sexual harassment.
1. Adopt a written sexual harassment policy.
a. Specify that policy applies to both sexual harassment and inappropriate sexual conduct.
2. A written policy can be a defense to some sexual
harassment complaints against a supervisor.
a. Affirmative defense if complainant has not suffered a “tangible employment action.” The test is:
i. “the employer
exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and
ii. the complainant employee “unreasonably failed to
take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
b. Employee’s failure to follow a complaint procedure provided by
the employer “will normally suffice to satisfy the employer’s burden on the second element of the defense.”
3. Appropriate investigation can be a mitigating factor.
4. Policy must make clear that the employer will not tolerate inappropriate sexual conduct either overt or implied
a. “Unwanted” conduct v. “unwelcomed” conduct.
5. Include a simple definition “sexual harassment.”
a. Prohibit “inappropriate sexual conduct” not solely “sexual harassment.”
b. No complicated definitions.
6. Include broad illustrative examples of inappropriate sexual conduct.
7. Same gender harassment is unlawful.
a. Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998).
b. Retherford v. AT&T Communications, 844 P.2d 949 (Utah 1992).
8. Third-party harassment is unlawful.
a. Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754 (9th Cir. 1997).
b. Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997).
The court reversed summary judgment in favor of the employer, and held that the defendant residential program for developmentally disabled individuals could be liable for sexual harassment because it did not respond appropriately to the sexual behavior of a mentally disabled resident toward employees.
c. Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998).
9. Employees who are minors can create liability.
10. Make reporting mandatory.
a. Do not require or imply that complainant must first talk to the harasser.
b. Do not require, or even allow, the complainant to handle the matter himself.
c. Do not decide not to conduct an investigation because the complainant has told you he “doesn’t want you to do anything, I just wanted to tell you”
11. Designate specific individuals
(or employment positions) to whom the complainant must report
12. Prohibit retaliation or reprisals against persons making complaints.
13. Require that complaints be made in good faith.
14. Communicate potential penalties for inappropriate sexual conduct.
15. Make policy user-friendly.
D. Include internal complaint procedures in policy
1. Should be “calculated to encourage victims of inappropriate sexual conduct to come forward.”
a. Consider including a statement that complaints should be made within a specified period after the incident complained about.
2. Provide a
specific list of individuals (or job positions) to complain to.
3. Train ALL management level employees to recognize inappropriate sexual conduct and to respond to sexual harassment complaints.
4. Designate as recipients of complaints only individuals who are properly trained to receive and process complaints.
5. Describe in detail each step of the internal complaint procedure.
E. Communicate the policy to all employees and supervisors.
1. Policy in writing.
2. Circulate and certify as being read.
3. Redistribute annually or as needed.
F. Don’t wait for a complaint if you are aware of the problem.
G. Designate Investigators.
1. Internal or external?
2. Internal Investigators
a. Use two people
b. Don’t select someone in the alleged harasser’s direct supervisory line.
c. Select someone of a higher rank than the accused who is outside his direct line of supervision.
d. Don’t select the office joker
e. Don’t select someone who has ever been accused of harassment, even wrongly (or maybe “especially wrongly”).
f. Select someone who will be a good witness.
g. Select a person who is credible and who has no blots on his or her record.
h. Select a person who is professional and will set a professional tone in interviews, is competent, understands the issue, and who can make decisions about the credibility of the persons interviewed.
i. Don’t select someone who is everyone’s friend or everyone’s confidant and buddy.
j. Select a person who has the time to move quickly, to remain objective, conduct a
thorough investigation, maintain confidentiality, and who can be authorized to take or effectively recommend prompt remedial measures.
k. Select a person who is fair, respected, and approachable.
l. Select someone who has credibility within the organization.
m. Select someone who will place people at ease and who takes complaints seriously.
n. Be aware of the power relationships in the organization, i.e., the position of the
investigator selected and the position of the alleged harasser.
o. Select an investigator who is impartial, who will not assume the complainant is being overly sensitive, and who will
not prejudge the issue before gathering all available facts.
p. In-house counsel participating in interviews will probably be fair game for discovery.
q. Select someone who is well-versed in the company’s policies and procedures.
3. External investigators.
4. Potential sources of external investigators.
5. Reports of external investigators.
a. Some employers ask that nothing be given to them in writing, and in turn give the investigator nothing in writing.
b.
Some employers send the investigator a letter, fully expecting that it will be used as an exhibit at trial.
The letter generally instructs that the investigator can talk to anyone and that the employer will help schedule interviews, informs that all documents will be made available, and asks for a written report with findings of fact and credibility assessments, but no legal conclusions. These employers sometimes provide the investigator with a letter that can be given by the investigator to employees, telling the employees to tell the truth and informing them that there will be no retaliation by the employer for doing so.
H. Notes
1. Content of any investigative report, including notes, will probably have to be disclosed.
I. Decide whether someone other that the investigator should be appointed as decision maker.
J. A complaint procedure alone will not insulate an employer from liability.
II. THE COMPLAINT
A. Principal Problems
1. File contains no written report by complainant.
2. Policy fails to specify a central location to deliver all complaints.
3. Failure to retain all complaints and to store them in one location.
4. Letting complaints drop.
5. Misunderstanding parameters of inappropriate sexual conduct.
6. Making a snap decision
that the conduct complained about does not amount to sexual harassment, and then failing to follow through with an investigation.
7. Ignoring inappropriate activities or verbal conduct.
8.
. Viewing joking sexual conduct as part of fostering “camaraderie and esprit de corp.”
9. Supervisors becoming involved in inappropriate sexual conduct.
10. Supervisors failing to stop inappropriate conduct.
11. Supervisors failing to take offhand inappropriate comments seriously.
12. Thinking male on male, or female on female, sexual conduct is OK.
13. Fostering the boys will be boys attitude.
14. Ignoring inappropriate sexual conduct or language by females.
15. Failing to recognize that women can be responsible for inappropriate sexual conduct
and/or sexual harassment.
16. Viewing inappropriate sexual conduct as letting off steam.
17. Failing to enforce the dress code.
18. Disbelieving that the alleged harasser would ever do what is complained about.
19. Friendship or some other social relationship between the alleged harasser and the person complained to or person who
conducts the investigation.
B. Written Report By Complainant
1. Provide name and employment position of alleged harasser(s).
2. List all incidents.
3. Provide dates of all incidents.
4. Specify who was involved in each incident.
5. List names of all witnesses or possible witnesses to each incident.
6. State whether a supervisor witnessed each incident.
7. For each incident, state whether it was reported verbally to a supervisor.
a. Who?
b. When?
c. Was anything later written up?
d. What action was taken?
e. Did the conduct stop?
8. Specify what was said and done during each incident.
a. EXACT words.
b. EXACT conduct.
c. All explicit details.
9. State the complainant’s reaction to each incident.
10. Specify what (if anything) the complainant did about each incident?
11. List what fellow employees the complainant told about it.
12. State whether this is the first time something like this has happened.
13. Ask whether the complainant knows of anyone else this or something else inappropriate might have happened to.
14. Specify
whether there are any records, photographs, notes or anything else that would corroborate the complainant’s story.
15. Did anything take place that might have been captured on as security camera or during a
taped telephone conversation or any other comparable place?
16. Ask whether the complainant has a diary, journal, or day planner and/or whether the incidents are recorded there.
17. Ask what effect the
alleged harassment had on the complainant or complainant’s work.
18. Ask for the names of anyone complainant has discussed the alleged incidents with, such as a spouse or counselor.
19. Ask whether there
is or ever was any social relationship between the complainant and the accused.
20. Ask whether the claimant has received threats of physical or other violence or whether he fears such violence.
21.
Whether the accused has tried to contact the complainant by phone, e-mail, letter, driving by her house, or in any other way.
22. Ask what remedy the complainant seeks.
III. INTERIM PROTECTIVE MEASURES
A. Take steps to assure that no further harassment or retaliation occurs while the complaint is being investigated.
1. Separate parties.
B. If warranted, relocate the alleged harasser, not the complainant.
C. Investigators should be trained and instructed to resist the urge to prejudge the merits of the complaint before all investigation, interviewing, and document gathering and evaluation are
complete.
IV. HALLMARKS OF EFFECTIVE INVESTIGATIONS
A. Take all complaints seriously, and investigate all complaints.
- B. Components of pre-investigation planning and organization.
1. Review of the relevant law and the employer’s own policies and procedures.
2. Identification of the investigation’s purposes and goals.
3. Thoughtful and careful selection of an investigator or investigation team.
4. Identification of witnesses and sources of information.
5. Establishment of a preliminary logical order and time line for interviews.
6. Preparation of a preliminary list of questions and matters to cover in interviews.
7. Documentation of all organizational efforts in the form of a written plan.
- C. Commitment to the investigation.
1. Devote sufficient resources and attention to the investigation.
2. Hallmarks of appropriate commitment.
a. Investigation is highest priority and immediate attention.
b. Selecting investigators of skill, knowledge, and impartiality.
c. Selecting the correct type of investigator for the type of complaint.
d. Making sure investigator is well-versed in the law and investigatory skills.
e. Use a sufficient number of investigators.
f. Giving investigators the authority, time, and access.
g. Taking proper action based on investigator’s findings.
h. Remain impartial.
- D. Promptness
1. If an employer does not respond promptly, its sexual harassment policies are called into question by its own employees and by the court.
2. Harassment can be ended faster.
3. “Prompt” depends on the circumstances.
- E. Thoroughness
- F. Fairness and Open-Mindedness
1. Fairness is the single most important factor in workplace investigations.
2. An employer’s long-term best interest is always in discovering the truth, and not with
covering up or defending indefensible behavior.
3. Make sure that the complainant is comfortable with the investigator(s).
4. Even a prompt investigation will be deemed unfair if the
employer fails to protect the complainant or witnesses, or fails to follow up on disciplining the alleged harasser.
5. The level of requisite fairness to each person involved in a sexual harassment complaint is very high--do not discriminate, treat everyone equally.
6. The accused has a right to know the accusations.
7. Employers and/or investigators should never assume they know what happened until they have heard every witness and examined every document.
8. Investigators should encourage and practice accuracy and precision.
9. Investigators should not use inflammatory language or jump to conclusions.
- G. Confidentiality
1. “Privacy” interests are protected by the Constitution.
a. Delve into sensitive or personal matters only when there is a substantial need.
2. Try to use the least intrusive means of gathering information.
3. If the information is sensitive or personal, collect only that which is absolutely necessary to accomplish your objective.
4. Disclose sensitive or personal information only to those with a need to know.
5. The “blabber mouth” witness.
6. E-mail.
7. Do not promise confidentiality to the complainant.
- H. Minors
1. Employees who are minors can create liability for sexual harassment.
a. In the Tenth Circuit (Utah is a part of the 10th Circuit), individual employees cannot be liable for sexual harassment under federal (Title VII) or state (Utah Antidiscrimination Act) discrimination statutes; the employer will be liable for the individual employee’s actions.
i. Caveat: Individual employees are often sued for things other than sexual harassment per se, such as for intentional infliction of emotional
distress and/or assault/battery.
2. Investigate complaints by and against employees who are minors.
a. Ask complainants or alleged harassers who are minors if they would like a parent to be present.
- I. Keep both the complainant and accused informed of the status of the investigation.
- J. Maintain adequate documentation.
1. Document witness statements.
a. Take written statements from everyone.
b. Court-reporter or video-taped statement?
2. Document all findings and conclusions.
3. Written report or not?
4. Document disciplinary action taken.
5. Document later monitoring efforts.
- K. Keep all files in one central location (even complaints you determine are unfounded).
- L. Take swift and appropriate corrective action.
1. Designed to stop the harassment.
2. To deter others.
3. Before terminating an alleged harasser, that person’s tenure and performance should be
considered, in addition to whether there have been prior incidents or complaints before, particularly of inappropriate sexually-related conduct.
4. Take into consideration how you have treated similarly situated employees.
V. THE COMPLAINANT’S DUTY TO REPORT
A. Courts usually mandate that the victim strictly comply with the procedures outlined in the sexual harassment policy, as long as the policy is made available to employees.
B. Courts generally do not allow a victim to rely on outside complaints to the union or EEOC as a substitute for the employer’s policy.
C. Complainants must cooperate with the investigation.
1. Refusal to cooperate based on advice of their attorney.
D. Alleged victims must report promptly.
F. The “generalized fear of retaliation” excuse for not reporting.
VI. CONDUCTING THE INVESTIGATION
A. Interview the complainant first.
1. Conduct the interview at a place and time convenient to the complainant.
2. Ask complainant to first fill out the report form and use that as a guide for discussion.
a. Ask complainant to add to the form or prepare a supplemental form if additional information comes out in the verbal discussion.
3. Explain how the interview will be conducted.
a. Explain that purpose of the interview is to get the facts, clarify the issues and establish a mutual understanding of the problem toward the end of reaching a fair solution.
b. Tell the complainant that you will be taking notes.
c. Go over the company policy regarding harassing behavior.
d. Assure the complainant there will be no retaliation, explain what retaliation is, and ask the complainant to report any retaliation immediately.
4. Explain the investigation time frame.
5.
Explain you will report back with the outcome of investigation and action taken, if any.
6. Explain the guidelines as to who will be making decisions after the investigation is complete.
7. Be painstaking and thorough, get every detail.
8. Do not settle for general descriptions of behavior or general descriptions of comments allegedly made by the accused. Insist on specifics, including
the exact words and language that was offensive.
9. Find out the following, and make sure it is all included in the report:
a. What happened.
b. When and how often it happened.
c. Who did it.
d. Where it happened.
e. Whether there were witnesses or possible witnesses.
f. Whether a supervisor may have witnessed or heard of the conduct.
g. What exactly was said or done.
h. What the complainant’s reaction was.
i. What the complainant did about it.
j. What fellow employees the complainant told about it.
k. Whether this is the first time that something like this has happened.
l. Whether it has ever happened to anyone else in the group.
m. Whether there are any records, photographs,
notes or anything else that would corroborate the story.
n. Did anything take place that might have been captured on as security camera or during a taped telephone conversation or any other comparable place?
o. Whether the complainant has a diary, journal, or day planner.
p. What effect the alleged harassment had on the complainant or complainant’s work.
i. Do not offer suggestions.
q. Ask if the complainant has discussed the alleged incidents with others, such as a spouse or counselor.
r. The social relationship between the complainant and the accused.
s. Whether the claimant has had threats of physical or other violence or whether he fears such violence.
t. Whether
the accused has tried to contact the complainant by phone, e-mail, letter, driving by her house, or in any other way.
u. What remedy the complainant seeks.
10. Print out and keep all e-mails you receive or send to the complainant about the incident.
11. Consider whether you want to tape-record the interview.
B. Interview the accused next.
1. Use the Report Form as a guideline for questioning—obtain as many facts and documents as possible before interviewing the accused.
2. If there is more than one accused, interview them separately.
3. Inform the accused “the company has received a complaint about you” and that investigation is being conducted.
4. Inform the
accused of the company policy on sexual harassment and inappropriate sexual conduct, that the company investigates all complaints, and that disciplinary measures that can be taken if the investigation results in
a finding of harassment.
a. Do not terrify the accused with threats of discharge, but if the conduct complained of is serious enough to warrant discharge, the possibility should be mentioned.
5. Inform the accused of all the details
in the allegations, no matter how unpleasant it may be.
a. Ask the accused if they are true.
b. If the complaint is generalized bad behavior, it may not be necessary to identify the complainant, because it does not matter who complained.
6. Give the accused a full and fair chance to provide their
recollections of the alleged incident(s).
a. Inform the accused that notes will be taken during the interview.
7. Tell the accused it is your job to investigate the allegations, and that you
have drawn no conclusions.
8. Make sure that you have drawn no conclusions.
The accused is entitled to the investigator’s sensitivity and open mind. The investigator is not “accusing”; the investigator is only seeking the accused’s side of the story.
9. If the investigator or
one of the investigators is a lawyer, let the accused know that the lawyer represents the employer, and not the accused or complainant.
10. Inform the accused of the employer’s interest in determining the facts.
11. Obtain as much detail from each accused as possible, and give them an opportunity to respond to each allegation.
a. Ask about interactions with complainant.
b. Ask how often and in what context interactions with complainant took place.
c. Ask the social relationship (if any) between complainant and accused.
d. Ask the employment relationship between complainant and accused, and the duties and responsibilities of each.
e. Ask whether complainant has ever discussed the behavior with the accused and asked the accused to stop. (The complainant does not have to ask the accused to stop, and never require the complainant to
do anything about the complained-of behavior himself or herself.)
f. Ask if the accused is aware of any witnesses to the alleged behavior and/or interactions.
g. Ask the accused about prior discipline issues and/or behavior patterns of the accused.
h. Ask whether complainant had made prior complaints about the accused to a supervisor.
i. Attempt to obtain the accused’s belief as to the motivation or reason why the complaint may have been brought.
12. Ask the accused if there is anyone that she would like you to interview.
a. Ask if any witnesses were present.
13. Prepare a summary of the interview and ask the accused to
sign it “if this is a correct version of events.”
a. If the accused refuses to sign it, document that refusal.
14. Inform the accused what the next steps will be.
15. Explain the time frame for investigation.
16. Advise the accused that you will report back on the outcome of the investigation and action to be taken, if any.
17. Inform the accused that no matter how
difficult it is to be the subject of a sexual harassment charge, he or she is not to retaliate in any way against the complainant, even if the employer ultimately decides that no sexual harassment occurred.
18. Be prepared to deal with strong emotions--anger, fear, accusations of betrayal by the company.
19. Consider whether to tape record the interview.
20. Print out and retain all e-mails sent to and
received from the accused about the complaint.
C. Third-party witnesses.
1. Interview all relevant third-party witnesses.
a. Become familiar with the area the accused and harasser work in and interview any obvious witness who was not identified.
2. Phrase questions in general terms.
a. Ask whether they have ever witnessed what they thought was sexual conduct.
b. Don’t ask whether the accused “harassed” the complainant.
3. Ask about interactions between complainant and accused.
4. Ask whether the complainant ever complained to them.
5. If the victim or accused has said that the witness was present during an encounter, the
investigator must ask specifically about the conduct that the victim alleged.
6. Tell the witness they need not fear reprisal or retaliation from the company, accused, or victim, and that they are to
report reprisal or retaliation to you promptly.
7. Prepare a summary of the witness interview and ask the witness to sign it.
8. Explain the need for confidentiality and ask the witness to maintain
confidentiality. Ask the witness to inform you if the complainant or alleged harasser attempts to speak to them about the incidents.
9. Consider whether to tape record the interview.
10. Print out and retain all e-mails sent to and received from witnesses.
D. Privacy Concerns
1. Caution all persons interviewed about discussing the matter with others.
a. Inform them that this is to protect the process, reputation, and well-being of all concerned.
b. Inform them that they could be subject to defamation or other claims if they speak
outside the investigation and make comments that disparage others.
2. Inform complainant, accused, and witnesses that information will be released only on a need-to-know basis.
E. Collect and preserve all relevant documentary evidence and statistics.
1.. Determine whether similar complaints have been made against the wrongdoer or whether the complainant has made
similar charges against another employee.
2. Personnel files.
a. Review the file of each accused.
b. Review complainant’s file, if appropriate.
c. In discrimination cases, review files of similarly situated employees who complainant alleges to have been treated differently, or who complainant alleges also suffered harassment.
3. Determine how those
in complainant’s protected group have fared in terms of compensation, promotion, etc. with other employees.
4. Ask all witnesses if they have documents that might be relevant, such as diaries, day planners,
journals, expense reports, etc.
5. Check your records to see how previous harassers have be handled.
a. Be alert to whether you are contemplating punishing this harasser more or
less harshly than similarly situated individuals have been punished in the past.
F. Document each step of the investigation in retrievable form.
G. Make a prompt decision.
VII. REMEDIAL ACTION RESULTING FROM THE INVESTIGATION
A. When the investigation is over:
1. Assess all evidence and make a judgment as to whether the alleged conduct actually occurred.
a. Evaluate how the various stories intermesh.
b. Did witnesses corroborate the stories?
c. Did the accused admit to rather innocuous acts but deny more egregious ones?
d. Did witnesses say they saw nothing, but also say that the accused was always
“bothering” the complainant?
e. Do witnesses say that they complainant was always bothering the accused?
f. Do the witnesses say that the accused was only joking
with the complainant and the complainant joked and flirted with the accused?
g. The investigator is the person who has to determine the veracity of what occurred, the complainant, the
accused, and the witnesses.
2. If you determine that the conduct did occur:
a. Determine whether you think it might be the type of behavior that constitutes legal sexual harassment.
i. Do not overlook types of harassment or discrimination that are not technically “sexual” harassment, and which may also be actionable, e.g., gender discrimination.
ii. Conduct that may not be legally sexually harassing may nevertheless violate the employer’s policies and should be dealt with accordingly.
3.
If you determine that the conduct occurred, you may decide it is sexual harassment, or you may decide it is inappropriate sexual conduct. Discipline for both of these and not just if you believe the conduct
amounts to sexual harassment.
a. The standard is that an employer must take prompt action “reasonably calculated to end the harassment.”
i. Make the action proportional to the seriousness of the offense.
ii. Consider the severity, frequency, and
pervasiveness of the conduct when deciding on the remedy.
4. Actions that might be considered, alone or in combination:
a. Training.
b. Circulating and/or publicizing the company policy on sexual harassment.
c. Apology.
d. Oral reprimands or strong written warnings, including
making it clear that a recurrence will not be tolerated.
e. Special counseling.
f. Transfer or reassignment of the harasser.
g. Demotion of the harasser.
h. Suspension without pay.
i. Discharge.
B. Document all disciplinary action take against the accused, even if it results from a finding of inappropriate behavior and not sexual harassment.
C. Inform each person who needs to know of the outcome of the investigation.
1. Inform both complainant and accused if the investigation is inconclusive.
2. Inform both complainant and accused if the charge is not substantiated.
D. Remind both parties of protection/prohibition against retaliation.
E. Be alert to possible informal retaliation.
F. Make any changes in assignments warranted or requested, being careful that no change is retaliatory.
G. Advise the complainant to report future incidents.
H. Be aware that if the action taken does not remedy the situation, or is only temporarily effective, the company can be held liable.
I. If policies or procedures were inadequate to the situation confronted, modify them accordingly.
VIII. THE “DIFFICULT CASE”
A. “Complainant’s Word v. Accused’s Word”
B. The Complainant Who Had Previously Joined In Sexual Jokes and Sexual Conversation
C. The Constant Complainant
D. Previous Relationship Between Complainant and Alleged Harasser
IX. RIGHTS OF THE ALLEGED HARASSER
A. In general, equal employment laws provide no cause of action when an alleged sexual harasser is discharged.
1. Perkins v. Brigham & Women’s Hospital, 78 F.3d 747 (1st Cir. 1996)
2.. Bellairs v. Coors Brewing Co., No. 95-1486, 1997 U.S. App. LEXIS 4626 (10th Cir. Mar. 12, 1997).
3. Cotran v. Rollins Hudig Hall International, 948 P.2d 412 (Calif. 1998).
B. Caveat: alleged sexual harassers who belong to a protected category have sometimes claimed that false sexual harassment charges were a pretext for a discriminatory discharge.
X. PREPARING FOR A POTENTIAL RETALIATION CLAIM
A. Good investigation, reporting, will not necessarily save employers from a Title VII lawsuit.
B. Retaliation is also an available claim under Title VII.
C. An employee can bring a retaliation claim even if there is no underlying “sexual harassment.”
1. Complainant need only have a reasonable belief there was sexual harassment.
D. Dealing with potential future retaliation claims:
1. Maintain excellent disciplinary files.
a. Make sure employee evaluations are honest and accurate.
b. Keep track of all warnings and disciplinary actions.
2. Be alert for potential retaliation.
XI. DEPOSITION AND TRIAL MISTAKES OF INVESTIGATORS
A. The investigator has no general sexual harassment training.
B. The investigator cannot remember when, where, or how much sexual harassment training he or she received, or who provided the training.
C. The investigator has obtained and retained sexual harassment training materials, but has never read them.
D. The investigator has had no formal or on-the-job training in investigating, and no guidance from a more experienced individual.
E. The investigator testifies that he or she has conducted numerous sexual harassment investigations, and never “found” sexual harassment.
F. The investigator cannot articulate a definition of sexual harassment.
G. The investigator cannot describe the steps that should be taken in a full, fair, and appropriate investigation.
H. The investigator has no knowledge of effective interview techniques.
I. The investigator cannot explain how or why he or she followed up on certain issues and not others.
J. The investigator cannot explain why he or she interviewed some witnesses and not others.
K. The investigator cannot explain why one witness was believed but another witness was not believed.
L. The investigator appears unconcerned about the rights of either party.
M. The investigator has created no documentation, or has created poor documentation which is conclusory or inaccurate.
XII. REASONS FOR HANDLING SEXUAL HARASSMENT COMPLAINTS PROPERLY
A. The Stakes High.
1. Increased legal costs and larger jury verdicts..
a. Weeks v. Baker & McKenzie, 66 F.E.P. (BNA) 581, 1994 WL 774633
(Cal. Super. 1994). $7.1 million in total damages--$50,000 in compensatory damages, $225,000 in punitive damages from Greenstein, and $6.9 in punitive damages from Baker & McKenzie. Baker & McKenzie’s punitive damages later reduced to 3.5 million.
b. Nestler v. Chartwells Dining Services, No. 02CV01115 (N.D. N.Y. 05/06/04). Jury Verdict for Plaintiff: $15,143,000. $35,303 for back pay, $7670 for front pay, $100,000
for pain and suffering, $15,000,000 in punitive damages. (The cap on punitive damages is $300,000).
c. Kimsey v. Walmart, Inc., No. 94-4195-CV-C5 (W.D.Mo. 1995).
Plaintiff was awarded $1 for lost wages, $35,000 for pain and suffering, and $50 million in punitive damages. Trial court later reduced the award to $5 million, and the Eighth Circuit reduced it to $350,000.
d. EEOC v. JB’s Family Restaurants, No. 2:01CV439 (D.Utah 3/26/04). Settlement: $435,000.
e. Governmental Entities:
i. Walde v. Sioux City Community Sch. Dist., No. 02CV04012 (N.D. Iowa 03/11/04). Settlement: $350,000.
ii. Reynolds v. City of Westbrook, Me., No. 03CV00259 (D.Me. 04/12/04). Settlement: $124,585.
iii. Erker v. Colorado Judicial Dept., No. 00CV445 (D.Colo. 02/25/04). Settlement: $250,000.
iv. Bernal v. El Paso City-County Health and Environment Dist., No. 99-1901 (TX. Dist. Ct. 12/11/03). Plaintiff Jury Verdict:
$381,000 (plus attorneys fees and costs).
v. Eich v. Board of Regents of Central Missouri State Univ., No. 4:01CV00715 (W.D. Mo. 10/21/02).
Plaintiff Jury Verdict: $242,272 (plus attorneys fees and costs).
vi. Rudd v. Shelby County, TN, No. 01CV3020 (W.D. Tenn. 10/06/03).
Plaintiff Jury Verdict: $952,000 (plus attorneys fees and costs).
vii. Cline v. County of Clay, Minn., No. 01CV2239 (D. Minn. 09/16/03).
Settlement: $1,505,643.
viii. Kessel v. Cook County, No. 00CV3980 (N.D. Ill. 07/02/03). Plaintiff Jury Verdict: $700,000
(plus attorneys costs and fees). Later reduced to statutory limit of $300,000 against county, $100,000 damages against one male coworker and $100,000 against the individual coworkers.
2. If the employer can show it acted reasonably, the employer will not be liable for punitive damages even if the affirmative defense is disallowed.
3. Plaintiffs are devising new causes of action.
4. Persons not even accused of harassment, including investigators, human resources personnel, managers, and attorneys, may be named as individual defendants.
5. High plaintiff recovery rate.
6.
Defendants can be liable for plaintiffs’ attorneys’ fees and costs, in addition to their own.
B. Judges are scrutinizing cases more closely.
1. Judges second-guess employer’s handling and resolution of workplace investigations.
2. Summary judgments not granted as frequently.
3. Failure to promptly and thoroughly investigate a complaint of harassment could result in substantial liability.
C. The jury has higher expectations of the investigation.
Numerous sources were relied on in compiling this outline: (1) D. Jan Duffy, Conducting and Defending Sexual Harassment Investigations, ABA Center for Continuing Legal Education (Oct. 15-18,
1997); (2) Carla Barboza, Prevention Policies and Programs From a Plaintiff’s Perspective, ABA Center for Continuing Legal Education (Oct. 15-18, 1997); (3) Jo Backer Laird, Conducting a Discrimination or Harassment
Investigation, American Law Institute (1997); (4) Alan M. Koral, Critical Decisions in the Investigation of a Sex Harassment Claim - Practice Pointers and Case Law Update, Practicing Law Institute (June 1997); (5)
Arthur Rutkowski & Barbara Lang Rutkowski, Investigations of Alleged Offenses: Can An Improper and Incomplete Investigation Lead to Defamation? Who Should Conduct the Investigation? Employment Law Update
(Dec. 1997); (6) Loretta T. Attardo, An Overview of Selected Issues in Initiating and Responding to a Sexual Harassment Lawsuit From the Plaintiff’s Perspective, ABA Center for Continuing Legal Education (Oct.
15-18, 1997); (7) Nancy L. Abell & Marcia Nelson Jackson, Sexual Harassment Investigations--Cues, Clues and How-To’s, 12 The Labor Lawyer 1 (1996); (8) Judy Foritano, Sexual Harassment: Why Aren’t People
“Getting It?” BNAC Communicator (Spring 1998); (8) David B. Kahng & Nancy L. Werner, Avoiding Employer Liability for Punitive Damages, HR Advisor (Nov./Dec. 2002); (9) David M. Benck & Tessa Thrasher Hughes,
Investigating a Sexual Harassment Complaint: Prompt Remedial Measures, ACCA Docket (Mar. 2002); (10) Gerard Morales & Barbara McCloud, Workplace Disciplinary Investigations and Confidentialty: Striking the Right
Balance, Practical Lawyer (Apr. 2004).
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