How to Investigate Sexual Harassment Complaints|
by Gerard Panaro, BOL Guru
In 1999, the EEOC issued a policy on sexual harassment, including how to investigate complaints of sexual harassment. This article will present the EEOC's advice and offer suggestions for conducting investigations, based on the case law. Keep in mind that both the EEOC's policy recommendations and the following discussion of it apply equally to all forms of unlawful harassment, such as race, age, disability, religion, etc. harassment.
The first step in the process is to determine whether any investigation is necessary in the first place. For example, if the alleged harasser does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action. Under no circumstances, however, should the employer simply take the word of a complainant and discipline the harasser. At the bare minimum, the employer must at least ask the harasser if the allegations are true.
If a fact-finding investigation is necessary, it should be launched immediately. The case law shows that this advice is to be taken fairly literally: "immediately" means that day, the next day, certainly within 48, 72 hours; it doesn't mean next week. The EEOC advises that it may be necessary to undertake intermediate measures before completing the investigation to ensure that further harassment does not occur, especially if the investigation is going to be time-consuming and involve many accusations, many witnesses, and time to sort things out. Examples of interim relief measures are making scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.
The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.
Consideration should be given to having the investigation conducted by outside independent counsel. This has at least two advantages: one, the investigation will be done skillfully and competently, thereby possibly averting a "negligent investigation" suit (see below), and with attention to the legal significance of the process and potential litigation; two, due to the attorney-client privilege, the attorney work product doctrine, and/or the rule protecting trial preparation material, certain evidence and discussions uncovered by the attorney may be protected from disclosure to the other side.
For example, if the personnel director interviews witnesses and makes notes of the interviews, those notes are discoverable; but if an attorney does the interview, his or her notes may not be discoverable. Note Farr v. Midwest Woodworking, Inc., 2002 WL 31934008
D. Kan., 2002): The personnel director testified that she conducted an internal investigation, interviewed employees and made notes of these interviews. She further testified that she kept these interview notes on her desk, fully incorporated them into the written summary report she transmitted to the EEOC investigator, and that she thereafter shredded or destroyed the notes. She didn't keep copies of these notes in the employees' files, nor in any other file. The personnel director should not have destroyed her handwritten notes, the court said, and they would have been discoverable.
However, if the attorney conducts the interviews, his or her notes may be shielded from disclosure by the attorney client privilege. Consider, for example, E.E.O.C. v. International Profit Associates, Inc., 206 F.R.D. 215 (N.D.Ill., 2002). The issue in that case was whether or not the EEOC's interview notes obtained from class plaintiffs and prospective witnesses after suit was filed were protected from discovery by International Profit Associates (IPA) by the attorney-client or work product privilege. IPA sought the interview notes in the course of discovery. The EEOC objected on the grounds that the interview notes were protected from disclosure by the attorney-client privilege and work product doctrine. The court held the interview notes prepared by the EEOC attorneys or their agents were protected material pursuant to both doctrines (attorney-client privilege and work product doctrine).
Returning to the EEOC guidance, when detailed fact-finding is necessary, the investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevant only in unusual circumstances. When interviewing the parties and witnesses, the investigator should refrain from offering his or her opinion.
The guidance gives the following questions as examples that may be appropriate to ask the parties and potential witnesses. Any actual investigation must be tailored to the particular facts. Questions for the complainant:
Questions to ask the alleged harasser:
- Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
- How did you react? What response did you make when the incident(s) occurred or afterwards?
- How did the harassment affect you? Has your job been affected in any way?
- Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
- Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
- Are there any notes, physical evidence, or other documentation regarding the incident(s)?
- How would you like to see the situation resolved?
- Do you know of any other relevant information?
Questions to ask witnesses:
- What is your response to the allegations?
- If the harasser claims that the allegations are false, ask why the complainant might lie.
- Are there any persons who have relevant information?
- Are there any notes, physical evidence, or other documentation regarding the incident(s)?
- Do you know of any other relevant information?
If there are conflicting versions of relevant events, the EEOC guidance advises, the employer will have to weigh each party's credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:
- What did you see or hear? When did this occur? Describe the alleged harasser's behavior toward the complainant and toward others in the workplace.
- What did the complainant tell you? When did s/he tell you this?
- Do you know of any other relevant information?
- Are there other persons who have relevant information?
None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant's credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.
- Inherent plausibility: Is the testimony believable on its face? Does it make sense?
- Demeanor: Did the person seem to be telling the truth or lying?
- Motive to falsify: Did the person have a reason to lie?
- Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party's testimony?
- Past record: Did the alleged harasser have a history of similar behavior in the past?
Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator's report. The parties should be informed of the determination. In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eye-witness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.
If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.
Failure to investigate a sexual harassment complaint will, of course, lead to liability. However, failure to investigate can also lead to suits by the accused, based on negligence (negligent failure to investigate). Although these suits are unwelcome and must be defended, at least there may be some consolation for employers in knowing that they are rarely successful. An examination of some recent cases will show why and how such suits arise and suggest what can be done to avoid or defeat them.
Doobenen v. Aerojet-General Corp., 2003 WL 405722 (Cal.App. 2 Dist. 2003) (Nonpublished/Nonciteable), holds that there is no duty to ask a consultant (who is not an employee) his version of events in investigating a sexual harassment claim.
The plaintiff worked for a consulting firm that assigned him to work at Aerojet. When funding ran out for the project, he was dismissed by Aerojet. Three months after he left, a female Aerojet employee made an internal complaint to her supervisor about the plaintiff's conduct while he worked at Aerojet. She said he made inappropriate comments to her, made her feel uncomfortable, left a note on her desk addressing her as "honey" and called her from home to see whether she got the note. On one occasion, he asked her "if he dropped something on the floor would [she] bend over and pick it up."
In accord with Aerojet's anti-harassment policy, the supervisor notified Aerojet's in-house legal counsel and the head of human resources, to determine what additional steps he should take. HR said it would handle the complaint. HR met with the complainant, who relayed her account of the events. She told HR that no other Aerojet employees had witnessed the offending interactions and that "it was not a big deal. I don't want him to get into any trouble. He isn't here anymore." HR never contacted the plaintiff. The investigator turned his investigation notes and the complainant's statement over to his boss, who put them in a separate file marked "confidential." Because the plaintiff was no longer doing consulting work at Aerojet, and it was unclear whether he would be returning to Aerojet, the HR director did not pursue the matter. He decided that if the plaintiff ever returned to Aerojet, he would discuss the complainant's allegations with him and determine how to proceed at that time.
Eventually, the plaintiff learned he had been accused of sexual harassment. He contacted two Aerojet human resources employees to ask about an investigation into complaints made by a female employee at Aerojet. The HR director told them not to provide any information and to direct any calls to him. The plaintiff sued the female employee who had accused him of harassment for defamation; he also sued Aerojet for negligence. He alleged Aerojet was negligent in conducting the sexual harassment investigation because it never informed him of the accusations and did not afford him an opportunity to defend his reputation. He alleged that due to Aerojet's failure to properly investigate the matter, he was not asked back to complete the project he had been working at there. He also claimed his reputation was ruined, resulting in a dramatic drop in his consulting business, from $207,595 in sales in 2000 to $5,094 in 2001. The trial court ruled in favor of the employee and Aerojet, and the plaintiff appealed the judgment in favor of Aerojet. On appeal, the judgment for Aerojet was affirmed.
The trial court ruled that Aerojet had no legal duty to interview the plaintiff. He was never an employee of Aerojet, was not currently performing services as a consultant at Aerojet, and there was no expectation that he would return to Aerojet to perform consulting services in the future. There was no special relationship between Aerojet and the plaintiff that would give rise to any duty running from Aerojet to the plaintiff.
Second, the trial court rejected the plaintiff's argument that Aerojet's failure to offer him the opportunity to rebut the complainant's allegations damaged his reputation and prevented him from working for Aerojet again as well as other companies in the industry. "The mere breach of a professional duty-- even if one had occurred--causing only nominal damages, speculative harm, or the threat of future harm, not yet realized, does not suffice to create a cause of action for negligence," the trial court held.
Not only did the appeals court say that the trial court's conclusion was proper, but it added another reason for ruling in favor of the employer: "Moreover, the imposition of a common law duty of ordinary care in investigating [the plaintiff's] alleged misconduct would substantially alter the parties' relationship and fly in the face of the employment at will doctrine." The court explained the rationale (citing and quoting Texas Farm Bureau Mutual Ins. Co. v. Sears, (Tex.Sup.Ct. 2002), 84 S.W.3d 604): "By definition, the employment-at-will doctrine does not require an employer to be reasonable, or even careful, in making its termination decisions. If the at- will doctrine allows an employer to discharge an employee for bad reasons without liability, surely an employer should not incur liability when its reasons for discharge are carelessly formed. Engrafting a negligence exception on our at-will employment jurisprudence would inevitably swallow the rule."
In this case, the California appellate court added, the plaintiff's relationship to Aerojet was even more attenuated than that of an at will employee: he was not even an at- will employee of Aerojet. He was an independent contractor who, at one time, was a consultant at Aerojet, but at the time of the investigation was working elsewhere. Aerojet had no obligation to use the plaintiff's services at some point in the future. Therefore, it did not owe him a duty of care in the conduct of its investigation of the harassment allegations.
If one lesson of Doobenen is that at will employees and consultants don't have to be interviewed, another is even stronger: as a practical matter, the EEOC's advice to interview the harasser is good advice, even if there is no legal obligation to do so. It certainly would have been easier, quicker and infinitely cheaper for Aerojet simply to have picked up the phone and called the plaintiff to get his version of events than it was to have to defend against his negligent investigation lawsuit. Of course, there is always the possibility that having been informed of the charge, the plaintiff would have sued the complainant and Aerojet anyway.
Garcia v. State University at Albany, 2003 WL 261914 (C.A.2 2003), illustrates another possible ground for a negligent investigation claim: that the employer failed to follow its own internal rules or policies for dealing with sexual harassment complaints. In Garcia, the plaintiff alleged that university officials failed to follow the university's own rules when they attempted to impose discipline on him based on evidence that he engaged in sexual harassment. However, because no evidence was presented at trial that any of the university's rules were violated, the court ruled in favor of the university.
Flanagan v. Ashcroft, 316 F.3d 728 (C.A.7 2003) presents a third ground for challenging an investigation: "reverse sexual harassment." In Flanagan, after receiving a complaint that an instructor at its Chicago-based Basic Narcotics Training School used offensive language while conducting a seminar in the fall of 1994, the Drug Enforcement Agency (DEA) began an investigation that eventually expanded to include five DEA agents who worked as seminar instructors. One resigned rather than be fired; the other agents were transferred to different cities. All five agents then filed suit under Title VII, charging that the DEA mishandled the investigation because they were white, male, and, in one case, Jewish, and that the transfers, proposed dismissal, and other employment decisions were acts of retaliation for their opposition to unlawful employment discrimination. The district court dismissed the discrimination count and granted summary judgment for the DEA on the retaliation count, and the agents appealed.
As the basis for their discrimination claim, the agents alleged that the DEA's conduct of its investigation was "egregious" and "unprofessional," that the DEA treated the agents and other witnesses in a "hostile and accusatory manner" and in such a way as to "give credence to false accusations" and to cause the circulation among the Chicago law enforcement community of "untrue rumors concerning [the agents'] professional competence and alleged misconduct," and that the botched investigation resulted in a "sexually charged, racially charged, hostile and offensive working environment." The district court dismissed the discrimination count for failure to state a claim.
The Seventh Circuit said that the district court was correct: an investigation of sexual harassment that exceeds the proper limits is not itself a form of actionable sexual harassment. Permitting discrimination claims based on such investigations, the Seventh Circuit said, would "place employers on a razor's edge": if they ignored complaints of sexual harassment, they would face Title VII liability if the complaints were meritorious; if employers investigated complaints thoroughly, they would face discrimination claims from the targeted employees. There is no "important distinction," the court said, between a decision to investigate and the extent of an investigation. Moreover, it added, the plaintiffs' suggestion that an employer is not entitled to investigate a sexual harassment complaint is untenable."
Summary and Conclusion
Under Title VII, once there is a complaint of sexual harassment, the employer has a duty to investigate. It must discharge this duty promptly: right away, immediately. The employer should still investigate, even if the complainant doesn't want it to. All "interested parties" should be interviewed: the complainant, the accused, witnesses. Consideration should be given to having the investigation conducted by legal counsel, so as to shield material from discovery through the attorney-client, work product and/or trial preparation privileges and doctrines. Notes and drafts of interviews, reports, etc. should be preserved as well as final drafts. Failure to do so, if done in bad faith, could result in sanctions against the offending party, all the way up to dismissal of the claim, striking of a defense or judgment in favor of the disadvantaged party.
Accused harassers who have disciplined may sue for negligent investigation and possibly other claims, such as defamation, "reverse discrimination," and retaliation. This is why, for practical reasons, even if there is no legal obligation to interview the harasser, it should always be done. As a general proposition, claims of negligent investigation will fail, primarily because of the strong public policy in favor of investigating sexual harassment complaints. The duty runs primarily to the victim of harassment, not the alleged perpetrator. In the case of at will employees and independent contractors, courts have held that the employer owes them no duty to investigate in a particular manner.
1 Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors 6/18/99, http://www.eeoc.gov/docs/VC.
2 Deliberate destruction of evidence can lead to sanctions ranging from paying the other side's costs to a ruling against the party destroying the evidence. The court stated the general rule in Farr: "The general rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to an inference that production of the document would have been unfavorable to the party responsible for its destruction.... The adverse inference must be predicated on the bad faith of the party destroying the records ... Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case."
3 "The essential issue presented is whether Aerojet owed Doobenen a duty of care in the manner it conducted an investigation of an employee's claim of sexual harassment. We conclude Aerojet did not owe a duty to Doobenen to ask him for his version of the events. Doobenen was never an employee of Aerojet, at the time of the investigation Doobenen was no longer consulting at Aerojet, as he was working elsewhere, and Aerojet had no obligation to recommence utilization of his services at some point in the future."
4 "[A]n employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer."
First published [date] in Fair Employment Practices Guidelines, a
semimonthly publication by Aspen Publishers, 1185 Avenue of the Americas.
New York, NY.
About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is
available to assist readers on an individual basis. You may reach him at
202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the
Washington, DC office.
First published on BankersOnline.com 9/29/03