Written By: Scott R. Thomas
Few things have a more costly and damaging effect on all aspects of a business than a sexual harassment complaint. Legal costs are incurred to respond to inquiries from the Equal Employment Opportunity Commission. If the matter is not resolved there, costs escalate as the matter proceeds to litigation. Even with federal limits, exposure under state law claims can be high, as plaintiffs plead their claims in alternative ways such as assault and battery, infliction of emotional distress, negligent supervision, etc. Many of these claims carry the specter of punitive damages. On top of that, most insurance policies exclude sexual harassment claims from the scope of coverage so the Company is totally exposed. The litigation creates significant indirect costs associated with the loss of productivity of having company personnel appear in court, sit for depositions, meet with counsel, etc. If the claim garners media attention, the cost to the business can be devastating. For all of these reasons, it becomes critical to investigate the claim properly from the moment it is made. A good investigation will position the company for optimum results in every forum at every stage. A shoddy investigation, on the other hand, will make matters worse and perhaps increase the company’s exposure.
Do it Now. Since the courts require the employer to take prompt remedial action, it is imperative that the employer respond immediately to a claim of sexual harassment. Prompt investigation must be taken. In one case a supervisor delayed an investigation for one day, 24 hours, and a court held that was not quick enough. “Prompt” apparently means less than 24 hours; “prompt” means “right now.” Managers and supervisors will most often state that they have other things to do, such as get production out, respond to customer complaints, whatever, but as far as the courts are concerned, once a complaint of sexual harassment is lodged, the supervisor must take immediate action to respond.
Just Do It. A Company who receives a complaint of harassment against must proceed to investigate the complaint, even if the complaint is believed to be false. The investigator’s personal views on whether a factual basis for the complaint exists does not factor into the equation. Conversely, the victim doesn’t get to call off the investigation. The Company has an affirmative duty to investigate whenever a complaint is made, regardless of whether the victim has agreed to the investigation. When the Company learns of sexual harassment, an investigation must be conducted even if no complaint is made. In some cases, the victim may say they only wanted the Company to know about it but don’t want to make a “formal complaint,” whatever that is. The victim has no veto power. When the Company learns the facts, it must investigate. Explain this to the victim. This alleged violation of federal and state law must be addressed. Understand that plaintiff lawyers know this rule and will bury a Company that ignores a sexual harassment report at the victim’s request.
Do it by the Book. By “the book,” I mean your Company’s Employee Handbook. If you don’t have one, set aside the time to write one. The Employee Handbook should set forth the Company’s policy that sexual harassment in any form will not be tolerated. The policy should also state the procedures that a victim of sexual harassment can follow to report the incident without fear of retaliation so that the conduct can be investigated and the Company can take appropriate corrective action. The U.S. Supreme Court has encouraged employers to take this step by giving them an affirmative defense to liability for a supervisor’s misconduct in certain circumstances. If the Company has no policy, the defense is unavailable. At any rate, the investigation should follow the pattern outlined in the Company’s policy.
Make an Appointment. The investigation should be initiated with an “appointment letter.” The appointment letter should say that the Company is appointing the person to conduct an investigation into the complaint of sexual harassment made by Jane Smith on January 10, 2016. If the complaint was made in writing, the complaint should be attached to the appointment letter. Most important, the appointment letter should state: “The Company anticipates that this matter will result in litigation. This investigation is being conducted for the purposes of assisting the Company’s attorney and provide a factual basis for counsel’s legal guidance to the Company.” This will ensure that the fruits of the investigation will be covered by the attorney work product privilege. That way, if litigation does not ensue, the Company will have grounds to contest turning over the investigation materials to opposing counsel. Put the date and time on this appointment letter. That will help the Company later show that the investigation was begun “promptly.”
First Things First. There are a few things that need to be done straight away. In no particular order, these “first things” should be accomplished as soon as possible after getting the complaint. Gather all documents that pertain to the event. This may be a police report, a performance evaluation, an email string. The initial intake of evidence may also include physical evidence, e.g., defaced personal property of the victim. Collect these materials and safeguard them throughout the investigation.
Protect the Victim. This is an easy one but terribly important. The last thing the Company wants is for someone to take action that could be perceived as a retaliation against the victim for making the report of sexual harassment. Obviously, the alleged harasser has to be warned in no uncertain terms not to have any contact with the victim or communicate with the victim about the complaint. In addition, other personnel need to be notified to suspend any action relating to the victim. If the Company had been planning to cut the victim’s hours, put that on the back burner. If the Company had decided to transfer the victim to another office before this sexual harassment claim broke, put it off till the dust settles. You don’t want to strengthen a sexual harassment claim by taking action that can arguably be made to look adverse to the victim. Trust the victim’s attorney to make it look like a punishment for reporting the misconduct. This is the stuff punitive damages are made of.
No Penalty for Holding. Another first few hours action is to prepare what we call a “Litigation Hold.” This is a simple letter instructing the appropriate personnel that all documents that may have some bearing on the investigation must be preserved. The things to be preserved may vary with the circumstances of the particular case. What must be avoided at all costs is the destruction, intentional or inadvertent, of any document, file, quest, thing, that turns out later to be relevant to the inquiry. Lawyers call this “spoliation of evidence.” That’s a fancy term to describe the concept that the judge or jury will be entitled to assume that the evidence that got destroyed would have been unfavorable to the party that failed to preserve it. In some circumstances, this spoliation inference can give a lame case new legs. Nothing good comes of lost evidence. Get this letter out to supervisors, managers, human resources, the alleged harasser, the IT, and anybody who might possess something useful to the investigation.
Freeze! Ten minutes into any good cop show and you’ll hear the protagonist shout this command. This is also a powerful tool at the Company’s disposal. The Company wants to “freeze” the situation for purposes of the investigation. You don’t want the challenged conduct to continue. You don’t want the victim’s work to be interrupted. Consider other interim corrective action that should be taken. You may want to consider interim action should not appear to punish either the victim or the alleged harasser. On the contrary, explain that the Company is taking this action to protect them both. Such actions could include a non-disciplinary separation, potential leave with pay, temporary transfer of the alleged harasser (not the victim!), etc. If the incident involves other misconduct or a violation of Company policy on the part of the harasser, e.g., drug use, drunkenness, immoral or indecent conduct, you could consider disciplinary action for those violations—separate and apart from any future determination of whether the conduct constituted sexual harassment.
Call for Reinforcements. Legal representation is expensive. The Company wants to balance the cost of an attorney with the risk of going it alone. Every Company has to make a personal decision in this regard. I suggest the Company ask itself whether it’s likely that the complaint turns into a lawsuit. If it seems likely to blossom into litigation, the Company is better off getting a lawyer sooner rather than later. In my experience, if the victim accuses a senior member of management, or the allegations involve physical touching, you’re going to court. Best to get an attorney at the earliest possible stage.
Make No Promises. An investigator will frequently tell the victim or a witness that statements made in the investigation are confidential. This is a promise the investigator can’t keep. The Company is not going to broadcast the investigation on the internet but lots of people have a need to know the information. The most glaring example is that the Company must necessarily advise the harasser of the grounds for any discipline that flows from the investigation. The investigator means well but the unkeepable promise creates unrealistic expectations. When the promise is ultimately broken, the victim feels violated again and resents the Company, fueling a desire to take it to another level. The investigator must tell the victim that disclosure of the information will be kept to the smallest group of Company personnel having a need to know.
Talk to Me. The guts of the investigation is the interview. The investigator must interview every person with personal knowledge affecting the determination of whether sexual harassment occurred. I recommend starting with the victim. This may be done in one session or multiple sessions. Get the victim to put the complaint in writing. You need it as detailed as possible. That will set the parameters. Conclude the interview with a closer: “Have you told me all the facts regarding your complaint of sexual harassment against John Smith?” Keep asking that question until you get it all. Remember to put the date and time on every statement.
Keep in mind that some victims regret making a complaint and want it to end. They don’t have the power to turn off the investigation. They do, however, have the power to withhold information and cripple the investigation. You still must go through with the investigation. If the victim refuses to cooperate, however, that refusal must be documented in the report. Make a note of questions the victim refused to answer. Make the victim sign off on a statement that says she declined to provide additional information to aid the Company’s investigation.
Then move to the witnesses. Don’t go straight to the alleged harasser. Do that interview last, when your brain is full of all the knowledge imparted to you by the victim and all the witnesses.
Make each witness prepare a written statement. Accurate records created during the investigation carry much more weight than deposition or trial testimony years later. Right or wrong, juries tend to give more weight to something that’s been reduced to writing.
If the witness created a document you collected earlier, make sure that witness’ statement notes that “the attachment is a true copy of the letter I received from the customer on July 2, 2015.”
The investigator’s questions should be open-ended. Let the witness tell the story rather than putting words in the witness’ mouth. What happened? What was said? Where did it occur? How was your work affected? Are there any witnesses I should talk to? Has this ever happened before? Details? How did you reacted to John Smith’s behavior/remarks? Did you discuss this with anyone else? Do you have any other evidence relating to the incident? Are you aware of any reason for the conduct? The witness’ statement must be reduced to writing. Do not attempt to filter out what the witness wants to say. You can evaluate later what weight to give to portions of a statement that you think may be unreliable, e.g., facts reported to the witness by another person but not personally observed.
The investigator should develop a checklist that can be used for each witness. The checklist should end with a note to remind the witness that the matter is not to be discussed with anyone and that no retaliatory action against the victim will be tolerated.
The alleged harasser should be interviewed last. You will then have the most information to evaluate whether the alleged harasser is providing truthful responses. The alleged harasser may provide additional information that raises questions that must be put to the victim or other witnesses. If the alleged harasser invokes the Fifth Amendment privilege against self-incrimination, have the person record that in writing.
Search and Seizure. The investigator may consider searching areas in which the person—victim, witness, or alleged harasser—has no expectation of privacy. Hopefully, these areas are spelled out in the Employee Handbook. These areas typically include spaces like the employee’s locker, desk, work phone, work computer, or other cubby hole. The Fourth Amendment’s warrant requirement only restricts the government, not private actors. Depending on your Employee Handbook, you may also be able to search purses, back packs, briefcases, and other containers, provided the Company has given employees notice via the Employee Handbook or otherwise.
Turn over the Stones. A good investigator will turn over stones looking for information that relates to the complaint. In our times, many of these stones are electronic. The investigator should examine whether the people involved have communicated regarding the events at hand using email, texts, Twitter, FaceBook, or other social media.
Make the Call. The investigator needs to document the investigation, summarize it, and draw conclusions. This record is important because the Company can later use it to prove the employer acted responsibly and took prompt action. In many circumstances, the case will boil down to the victim’s word against the alleged harasser’s word. In lay terms, this “he said/she said” situation results in an impasse. Wrong. People go to prison every day based on the testimony of one person against another. The investigator has to make the call. If the claim of sexual harassment is proved, the investigator so concludes. If not, the investigator so concludes. That said, the investigator is not the final authority. The Company, not the investigator, is the final arbiter of what happened. The Company always has the authority to make a different determination based on the evidence collected by the investigator. The Company has the power, not the investigator.
Slap the Wrists or Drop the Hammer. If the investigator finds that sexual harassment occurred, appropriate sanctions must be imposed. The conduct cannot be ignored. Appropriate sanctions do not necessarily mean discharge. The punishment should fit the crime. A warning may be sufficient in some cases, particularly for a first offense. Under other circumstances, discharge may be necessary. The Company’s prompt, remedial action to protect those rights when a violation has occurred will provide a powerful deterrent and enable the Company to maintain a successful defense if litigation follows. The Company may consider: the harasser’s employment record; whether the harasser was aware of the Company’s policy; whether the harasser ignored the victim’s request that the harasser stop; what discipline, if any, has been imposed in the past.
Tie Up the Loose Ends. The victim should be told that the matter has been investigated and what the Company has decided to do. The investigation record is not considered a personnel file and should be maintained separately and confidentially. Neither the victim nor the alleged harasser is entitled to a copy of the report. The Company has an ongoing duty to insure that the harassment has stopped. Even if the complaint is not sustained, the alleged harasser should be counseled to get his act together.
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