Workplace Harassment: What Employers Must Know

7/15/2020 – NBI Audio Webinar

I.  Spotting Signs of Harassment in Your Workplace

A. What is “Harassment” Under the Law?

B. Protected Classes Under Federal Law

C. Social Media and After-Hours Issues

D. Harassment as a Form of Employment Discrimination

E. Recent Trends in Workplace Harassment Claims

II.  Handling Complaints: Legal Best Practices for Employers

A. EEOC Investigation Guidelines: Key Takeaways

B. Legal and Effective Investigative Procedures

C. Investigating the Claim

1. Interviewing Key Parties and Witnesses
2. Questions You Must Ask
3. Gathering Evidence

D. Documenting the Investigation

E. Guarding Against Claims of Retaliation

 

 

I.  Spotting Signs of Harassment in Your Workplace

A.  What is “Harassment” Under the Law?

In legal terms, “harassment” is conduct based on any protected classes that is so severe and pervasive that it alters the terms and conditions of employment thereby creating an abusive or hostile work environment.  See, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).  The alleged harassment must be severe or pervasive both objectively and subjectively.  Harris v. Forklift Sys. Inc., 510 U.S.17, 21-23 (1993).  To determine if harassment has been severe or pervasive, the courts will look at the totality of the circumstances, “frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.”  Id. at 23

While sexual harassment is the most publicized form of harassment, harassment based on any protected status under Title VII of the Civil Rights Act of 1964 – 42 U.S.C. §§ 2000e, et. seq. is illegal.  In addition, several Circuit Courts of Appeal have recognized harassment claims under other federal statutes, such as the Age Discrimination in Employment Act (ADEA) the Americans with Disabilities Act, as amended (ADAAA), the Genetic Information Non-disclosure Act (GINA) and the Occupational Safety and Health Act (OSHA).  However, since the criteria for harassment claims were created in sexual harassment cases, such cases are a guide to the analysis of harassment claims in general.

To make prima facie showing of harassment, a plaintiff must prove by a preponderance of the evidence:

• There was unwelcome harassment;
• The harassment was based on a protected class;
• The harassment was so severe or pervasive that it altered the terms or conditions of employment to create an abusive work environment; and
• There is some basis for imposing liability on the employer.

See, Howard v. Winter, 446 F.3d 559 (4^th Cir, 2006); Brenneman v. Famous Dave’s of Am., Inc. 507 F.3d 1139, 1143, (8^th Cir. 2007).

B.  Protected Classes Under Federal Law

Title VII, the ADEA, the ADA, GINA, and OSHA  are the most common basis in law for federal harassment claims.[1]  The Equal Employment Opportunity Commission (EEOC) has summarized in its definition of “harassment” unwelcome verbal or physical behavior that is based on the following protected classes:

• race,
• color,
• religion,
• sex (including pregnancy, homosexual, and transgender[2]),
• gender/gender identity,
• nationality,
• age (40 or older),
• physical or mental disability, or
• genetic information.

State laws and local ordinances must also be checked for additional protected characteristics and classes.

C.  Social Media and After Hours Issues

As use of social networking sites grows, it is unfortunate, but not surprising, that incidents of social media harassment in the workplace are also on the rise.

Every employer’s Ellerth/Faragher policy should also prohibit employees from engaging in harassing behavior online through social media.

CAVEAT:  Some states have prohibitions against discipline for lawful activities that occur after hours or off work.  Others have prohibitions against threatening loss of employment or engaging in economic reprisals for political activity.  See, e.g., Minn. Stat. 10A.36 (2019).  Consultation is advised with knowledgeable local employment counsel before taking disciplinary action for off duty activities.

1.  Examples of Workplace Social Media Harassment

Illegal social media harassment can take a variety of forms. Some examples include the following:

• An employee “friends” a co-worker, supervisor, or subordinate on a social networking site such as Facebook, Twitter, LinkedIn, Instagram, Snap Chat, or others, and then posts offensive or harassing messages through the site.
• Using the private message feature in social networking sites, one employee sends videos, photos, or text messages the recipient feels are offensive.
• A worker “cyber stalks” another employee’s online presence, obsessively following everything the employee does or posts online.
• A group of employees create an online website or blog that makes harassing and disparaging comments about another employee.

When harassing messages or posts are sent from one employee to another, it generally does not matter whether they were sent during business hours or not.  If the employer was aware or should have been aware of the activity the employer has the duty to stop such activity. It also does not matter if the employee harassing other employees (or customers) uses company-provided computers, tablets, or laptops to send or access such messages.

Social media comments between employees that would be illegal if conducted in the workplace, are also illegal if done on-line.

When a supervisor or co-worker’s comments, posts, or actions on social media rise to the level of harassing behavior that threatens other employees, makes them feel unsafe, or creates a hostile work environment based on a protected status, the harassment is illegal.  An employer’s Ellerth/Faragher policy should also advise employees to report the harassment.  In some cases of on-line harassment, it may be necessary to also contact the police if the harassment contains threats of violence or other unlawful activities directed at others.

2. Exception for Section 7 “Concerted Action” comments on Social Media directed toward Employer or Supervisors.

Under Section 7 of the National Labor Relations Act (NLRA) employees’ concerted activities for “mutual aid and protection of employees’ directed at the employer or supervisors are protected and generally not subject to discipline if they relate to wages, hours, and terms and conditions of employment.  When on-line comments are directed at the employer, or supervisors, employers should seek legal advice from experienced employment and/or labor counsel regarding whether employee discipline is appropriate.  The General Counsel of the National Labor Relations Board (NLRB) has issued guidance on social media policies and the NLRB has issued a series of decisions which define and interpret the limits of protection for employees who make social media posts about the company and its supervisors.  See, The Boeing Company, 365 NLRB No. 154 (Dec. 17, 2019) and https://www.nlrb.gov/news-outreach/news-story/nlrb-establishes-new-standard-governing-workplace-policies-and-upholds-no

An employer’s Ellerth/Faragher anti-harassment policy and social media  policy each should contain a disclaimer that the policies are not intended to interfere with employees’ rights under Section 7 of the NLRA.

D.  Harassment as a Form of Employment Discrimination

Illegal harassment must be differentiated from Workplace bullying, which may be distasteful, but is not illegal discrimination.  Workplace “bullying” is unwelcome verbal or physical behavior that is not based on a protected class.  The court decisions make clear that the anti-discrimination laws are not a general civility code.  Only if the unwelcome conduct is based on a protected class or characteristic is it illegal under federal law.  Thus employers need to decide whether or not their workplace policies are going to regulate behavior that is not illegal, but which regulate otherwise technically legal conduct which may also create unpleasant working conditions for employees.

Sexual harassment claims, on the other hand, are based on the protected status of “sex” in Title VII.  Title VII applies to all employers with 15 or more employees on its payroll for 20 or more weeks.  Please note, 15 FTE employees are not required; nor is the requirement for 15 employees to work each day.  Only 15 are required to be on the payroll each week, whether working, on paid vacation, salaried but absent, etc. Walters v. Metropolitan Educational Enterprises, Inc., 519 U. S. 202 (1997).

Prior to 1998, sexual harassment claims were classified as either quid pro quo or hostile work environment claims.  A quid pro quo claim was one where the employer offered an employment benefit or threatened adverse action in exchange for some sort of sexual benefit.  A hostile work environment did not have this element.  In two cases decided in 1998 the Supreme Court held that these characteristics were no longer relevant in analyzing a harassment claim: Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U. S. 775 (1998).  Instead of looking at the nature of the harassment, the standards of proof and levels of liability are determined by who did the harassing: the employer’s owner or alter ego, the employee’s supervisor, or a co-worker or other non-supervisory employee.  Each of these will be considered in the following.

1. Owner/Alter Ego Harassment

An employer will be strictly and automatically liable when the harassment is done by an employer’s owner, proxy, or alter-ego.

Vicarious liability automatically applies when the harassing supervisor is . . . indisputably within that class of an employee’s organization officials who may be treated as the organization’s proxy.”

Johnson v. West, 218 F.2d 725, 730 (7^th Cir. 2000) (quoting Faragher, supra at 789).  See also, Phillips v. Taco Bell Corp., 156 F.3d 884 (8^th Cir. 1998).

At a minimum, this requires that the harasser have an ownership interest in the Employer.  Canabal v. Aramark Corp, 48 Supp. 2d 94, 97-98 (D. Puerto Rico 1999).  In addition, the harasser must have “exercised such dominion and control with respect to the transaction attacked that the corporation had no separate will of its own.”  Lane v. Maryhaven Center of Hope, 944 F. Supp. 159. 163 (E.D.N.Y. 1996).  Factors to consider include the overall level of control over the employer, the decision-making power, and whether employees had an avenue to object to the harasser’s conduct.  Curcio v. Chinn Enterprises, 887 F. Supp 190, 194-94 (N. D. Ill. 1995).

2. Supervisory Harassment

An employer will generally have vicarious liability for a hostile work environment based on a protected class, that is created by the employee’s supervisor.  A supervisor is generally defined as an individual who has the ability with respect to the employee to hire, fire, set work schedules and supervise day-to-day work.

i.  Strict Liability for supervisor harassment resulting in “tangible adverse employment action.

When an employee is harassed by a supervisor and suffers “tangible adverse employment action,” the employer is strictly liable for the supervisor’s conduct.  Tangible adverse employment action is “a significant change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761.  Most courts require a definable infliction of economic harm.  However, some courts also require a significant effect on the employee’s career prospects.  For example, in Turner v. Gonzales, 421 F.3d 688 at 696 (8th Cir. 2005) neither the decision not to grant a raise in salary, nor a poor performance rating were considered to be “tangible adverse employment action[s].”

              ii.  Ellerth/Faragher defense to supervisory harassment without “tangible adverse employment action”

When there is no “tangible adverse employment action,” the employer will still be liable for a hostile work environment unless the employer can show: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”  Ellerth, 524 U.S. at 765.  The employer has the burden of proof to prove this defense by a preponderance of evidence.  To establish this defense, the employer must show that it developed and communicated a competent and sexual harassment policy that included a complaint resolution policy and the employee failed to take advantage of the resolution procedures in the policy or participate in a company meeting to address the complaint.  Jackson v. Ark. Dep’t. of Educ., Vocational and Technical Education Division, 272 F.3d 1020, 1026 (8^th Cir. 2001).

A competent sexual harassment policy should have in it the following according to current EEOC guidance:

• A clear explanation of prohibited conduct;
• Assurance that employees who make complaints of harassment or provide information related to complaints will be protected against retaliation;
• A clearly described complaint process that provides accessible avenues of complaint;
• Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
• A complaint process that provides a prompt, thorough, and impartial investigation;
• Assurance that the employer will take immediate and appropriate corrective action when it determines harassment has occurred.
  • State and local standards for employer liability

While many state laws and local ordinances have adopted the federal standard, the employer must also consider state law and local ordinances when developing its Ellerth/Faragher policy.

3. Co-Worker (Nonsupervisory) Harassment, and Non-Employee Harassment

When a non-supervisory co-worker is the harasser, the employer will have liability if it obtains actual or constructive knowledge of the harassment.  This is called the “knew or should have known” standard.  Similarly, the employer has the duty to address harassment by non-employees, such as suppliers, customers, or others. Christ v. Focus Homes Inc., 122 F.3d 1107, 1110 (8^th Cir. 1997).

Once the employer receives knowledge of harassment, the employer must take “prompt and adequate remedial action”  Mikels v. City of Durham, 183 F.3d 323, 329 (4^th Cir. 1999).

4. Aiding and Abetting under State Laws and Local Ordinances

While federal law focuses on the relation of the parties, employers need to be aware that state and local laws may provide broader exposure to liability for harassment based on a protected class or characteristics.  For example, under the Minnesota Human Rights Act (MHRA), Minn. Stat. Ch. 363A, individuals, as well as employers, may also have liability for aiding, abetting, inciting, compelling, or coercing another person to violate the MHRA.  Employers should check with their local employment law attorneys to determine what additional laws and ordinances that apply to their business.

E.  Recent Trends in Workplace Harassment Claims

The most recent “trend” in workplace harassment claims is to expand what is included as part of a protected class or characteristic in a statute or ordinance.

The June 15, 2020 decision of the Supreme Court of the United States in Bostock v. Clayton County, Georgia extended the protection under Title VII because of or motivated by “sex” to protection of homosexuals and transgenders from employment discrimination.  In the decision, the Court made clear that it will interpret the words of the statute, not by what the original authors of Title VII may have meant but by what it means as written.  Justice Gorsuch, author of the majority opinion, stated:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Another recent “trend” in workplace harassment claims is the trend towards interpreting what will qualify as “severe and pervasive” harassment considering evolving social standards.  This is occurring more at the state court level than the federal court level.  What was considered acceptable in the workplace 20, 30, 40, 50 or more years ago, may not be considered socially acceptable in the workplace at the present time.  Older cases have shocking examples where the federal courts determined as a matter of law that certain types of conduct, including groping of another employee’s body parts and lewd comments or solicitation for sexual favors were not “severe or pervasive” enough to constitute illegal harassment.  The current trend appears to be not to decide such cases as a matter of law on the basis of what shocks an old, white federal judge, but to allow such cases to go to a jury for a decision as to whether a local jury believes the words and actions are “severe or pervasive behavior.”  See, e.g., Kenneh v. Homeward Bound, Inc., a June 3, 2020 decision of the Minnesota Supreme Court.

Our use of the severe-or-pervasive framework from federal Title VII decisions does not mean that the conclusions drawn by those courts in any particular circumstances bind Minnesota courts in the application of our state statute. See Carlson v. Indep. Sch. Dist. No. 623, 392 N.W.2d 216, 220 (Minn. 1986). For the severe-or-pervasive standard to remain useful in Minnesota, the standard must evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace. As we recognized 30 years ago, the “essence” of the Human Rights Act is “societal change”; “[r]edress of individual injuries caused by discrimination is a means of achieving that goal.” Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 378 (Minn. 1990).

Today, reasonable people would likely not tolerate the type of workplace behavior that courts previously brushed aside as an “unsuccessful pursuit of a relationship,” Geist-Miller v. Mitchell, 783 N.W.2d 197, 203 (Minn. App. 2010), or “boorish, chauvinistic, and decidedly immature,” Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002). See generally McMiller v. Metro, 738 F.3d 185, 188–89 (8th Cir. 2013) (collecting cases of “inappropriate” but not actionable behavior). “[O]ne of the ‘avowed public policies’ of the [Human Rights Act] has been ‘to foster the employment of all individuals in this state in accordance with their fullest capacities.’ ” Daniel, 923 N.W.2d at 650–51 (quoting Wirig, 461 N.W.2d at 378).  In a hostile work environment, no employee can thrive. “

To determine whether actionable sex discrimination exists in a given case, all the circumstances surrounding the conduct alleged to constitute sexual harassment, such as the nature of the incidents and the context in which they occurred, should be examined.” Cont’l Can Co. v. State, 297 N.W.2d 241, 249 (Minn. 1980); see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (“The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.”); Jenkins v. Univ. of Minn., 838 F.3d 938, 945 (8th Cir. 2016). This is not “a mathematically precise test.” Harris, 510 U.S. at 22. In other words, courts “should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode.” Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992). Instead, courts and juries—the fact-finders—must consider the totality of the circumstances, “including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Goins, 635 N.W.2d at 725 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)).

“Each case must stand on its own circumstances.” Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 760 (8th Cir. 2003). Put another way, each case in Minnesota state court must be considered on its facts, not on a purportedly analogous federal decision. A single, severe incident may support a claim for relief. See, e.g., Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 456–57 (8th Cir. 2001); Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 969–70 (D. Minn. 1998) (collecting cases). Pervasive incidents, any of which may not be actionable when considered in isolation, may produce an objectively hostile environment when considered as a whole. See Harris, 510 U.S. at 23; see also Oncale, 523 U.S. at 82 (“Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff’s position would find . . . hostile or abusive.”).

II.  Handling Complaints: Legal Best Practices for Employers

A.  EEOC Investigation Guidelines: Key Takeaways

As indicated above, a competent policy to comply with Ellerth/Faragher should have the following, at a minimum:

• A clear explanation of prohibited conduct;
• Assurance that employees who make complaints of harassment or provide information related to complaints will be protected against retaliation;
• A clearly described complaint process that provides accessible avenues of complaint;
• Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
• A complaint process that provides a prompt, thorough, and impartial investigation;
• Assurance that the employer will take immediate and appropriate corrective action when it determines harassment has occurred.

Many employers construct their workplace policies to regulate workplace conduct that is well within the bounds of the law.  In other words, many policies are designed to prevent misconduct that may not necessarily be illegal.  In this presenter’s view there are two basic elements of any investigation of workplace misconduct.  (1) Does the conduct of the alleged harasser violate the employer’s policy regarding the alleged harassment? (2) If the conduct violated the employer’s policy, is it also likely to create a legal liability for the employer? Thus, the investigator needs to understand the employer’s policies prior to the investigation.  In addition, the investigator needs to understand the underlying law presented in the previous section to conduct an effective and thorough investigation.  As employer’s policies vary, this section will focus on the legal liability aspects of the alleged harassment at issue.

After the Ellerth/Faragher decisions in 1998, an employer was well advised to create an anti-harassment policy that encouraged employees to report alleged harassment, assure employees that there would be no toleration of retaliation for reporting, and immediate and appropriate corrective action will be taken:  See, e.g., https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors

B.  Legal and Effective Investigation Procedures

The following assumes the employees are not represented by a union.  If they are so represented, the Collective Bargaining Agreement may have requirements for the investigation, the employees may have the right to have a representative present, and individuals interviewed who may be subject to discipline may have the right to receive Weingarten warnings.

It is this writer’s opinion that it is necessary at the outset of each investigation to obtain the employer’s commitment that the employees are required to cooperate with the investigation and that the interviewer is empowered to convey this to each employee interviewed.  The interviewer should also inform each witness, that to the extent possible, the information provided by the witness will remain confidential.  In addition, the employer should empower the interviewer to inform each witness that the witness is prohibited from talking to other witnesses during the course of the investigation until the investigation is completed to insure the integrity of the investigation.  Finally, the investigator needs to inform each witness that another interview may be necessary to get additional information on matters that have been raised during the investigation.

Many articles have been written on investigative techniques.  However, the most important thing for the investigator, in this writer’s view, is to keep an open but inquiring mind.  Planning needs to go into the area to be covered.  The anti-harassment policy must be obtained, and questions prepared that relate to it, as well as the underlying law.  Generally, it is recommended by this writer that the investigator at the outset of an interview explain the purpose of the investigation, then advise the interviewee that during the investigation they not speak with other employees while the investigation is ongoing about the content of information conveyed, that the interviewee should report any instances of retaliation immediately to the interviewer, and that it may be necessary to circle back for more information.  This writer has a checklist to go over such matters with the interviewee, has the interviewee sign, and provides a copy to the interviewee.

It has been this writer’s experience that it is best to initially ask the interviewee broad general questions and let the interviewee talk.  Many times, matters will be learned that have not been previously been reported or anticipated.  Thereafter, follow up on the responses to learn more.  Only go to your prepared questions to ensure that everything has been asked that needs to be asked.

C.  Investigating the Claim

1. Interviewing Key Parties and Witnesses

It is the writer’s suggestion that the initial interview be of the person who first received a report of potential harassment.  Thereafter, interview the allegedly harassed employee to learn the full extent of the employee’s allegations.  Follow up with any fact witnesses who may have seen or heard the alleged harassment.  At the end, interview the alleged harasser.  Play the devil’s advocate to test the allegations and the witnesses.  Finally, interview the alleged harasser.  Ask specific questions regarding specific quotes of other witnesses.  Ask each witness why they think, believe, speculate why another witness would say something to the contrary.

2. Questions You Must Ask

The following questions are taken from the EEOC’s Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors.  It is suggested that they be used as a starting point to formulate your own questions based on the facts of the case you are investigating.  See, https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

Questions to Ask the Complainant:

• 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 the Alleged Harasser:

• 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?

Questions to Ask Third Parties:

• 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?

 

3. Gathering Evidence

In this writer’s view, the most effective investigations are conducted by the assignment of an inside the company employee, such as an HR representative and an outside investigator.  The combination produces a more complete picture than can usually be obtained by either alone.  It also provides an additional witness to the investigation and the information received should the matter eventually proceed to litigation.

It is important to either take extensive and unhurried notes or record the questions and answers.  Build in time after each interview to summarize that witness’s interview before proceeding to the next.  Make sure your interview location is private and will not be interrupted.  If possible, do it out of sight of other employees so co-employees will not know who is being interviewed.  Keep a running list of matters that must be followed up on with witnesses.  Adjust your initial questions based on the information received.  Document the witness’s words as closely as possible.  You may have to testify later.  It is a good practice to summarize what the witness has told you and ask the witness if the summary is correct.

D.  Documenting the Investigation: Avoiding Gaps in the Paper Trail

To the extent possible, the exact questions asked, and the exact responses received should be recorded or reduced to writing.  The start and stop times of each interview should be in the investigator’s notes.  Any witnesses who decline to respond should be noted in the investigator’s report.  It is not uncommon while writing the report to “discover” that additional corroboration or refutation can be determined by additional questions.  In such cases, prepare the questions and call or meet with the witness to clarify the matter missing.

While interviewing and after interviewing witness, it is helpful if the investigator makes notes about the plausibility of the witnesses statement, the witnesses demeanor, the witnesses motive, if any, to falsify and whether other testimony corroborates or refutes other witnesses.  If the alleged harasser has any history of similar conduct, that should also be noted.

At the conclusion of the investigation, the investigator should make determinations of the credibility of the allegations of the matter investigated.  In rare case, if credibility cannot be determined, or the evidence is inconclusive, the employer should still take preventative measures such as additional training and continued monitoring to ensure that no additional conduct will be tolerated.

E.  Guarding Against Claims of Retaliation

During the investigation, the employer should take steps to separate the alleged harasser from the alleged victim of the harassment.  If an employee must be moved or put on administrative leave to protect the alleged victim, it should be the alleged harasser, not the alleged victim who is moved or put on administrative leave.

The employer’s anti-harassment policy should have protection of witnesses and complainants against retaliation.  The investigator should advise the employee to report any perceived retaliation to the investigator and the employer after the investigation.  As indicated, all witnesses should be directed not to talk to other witnesses about the matter being investigated to ensure the integrity of the investigation  until the investigation has been completed.  Unfortunately, some witnesses will try to direct other witness’s testimony.  These reports should be documented and reported to the employer.  In extreme cases, if this violates the employer’s directives, such attempts to influence other witnesses may become a separate basis for discipline.

After an investigation, it is especially important for management to screen any discipline of complainants and witnesses to ensure such discipline is not based on a retaliatory motive.

If the investigation determines harassment has occurred, it is incumbent on the employer to take immediate and appropriate corrective action, including discipline.  Both the Complainant and the alleged Harasser should be informed of these actions.

 

Donald C. Erickson

Senior Counsel

Fryberger Law Firm

320 West Superior Street, Suite 700

Duluth, MN 55802,

Direct: 218.725.6852

Mobile: 218.391.0145,

Private E-Fax: 218.625.9202

derickson@fryberger.com

 

[1] Employers must also consider the definition of protected classes in their state Fair Employment or Human Rights Acts, as well as applicable definitions in local ordinances.  State laws and local ordinances generally expand on the number of protected classes.

[2] On June 15, 2020. SCOTUS decided that “sex” in Title VII also prohibits discrimination based on a person’s status as homosexual or transgender.  See, BOSTOCK v. CLAYTON COUNTY, GEORGIA.