Harassment Investigations

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This is a 2005 presentation I made on the topic of conducting investigations for employers who receive complaints of sexual harassment.

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Harassment Investigations

  1. 1. @Victoria L.H erring,www.H erringLaw.com RESPONDING TO ALLEGATIONS OF SEXUAL OR RACIAL HARASSMENT An Employer’s Initial Response: Conducting Effective Investigations of Harassment Complaints Victoria L. Herring July 20, 2005 Des Moines, Iowa page 1 @Victoria L. Herring, www.herringlaw.com created 2005
  2. 2. @Victoria L.H erring,www.H erringLaw.com How an Employer Can Obey the law of Harassment Protect itself from Litigation or Minimize the effects of Litigation picture: United States Supreme Court page 2 @Victoria L. Herring, www.herringlaw.com created 2005
  3. 3. @Victoria L.H erring,www.H erringLaw.com The Affirmative Defense An affirmative defense can serve to protect a defendant from being held liable, e.g. Statute of Limitations Prior settlement agreement or dismissal page 3 @Victoria L. Herring, www.herringlaw.com created 2005
  4. 4. @Victoria L.H erring,www.H erringLaw.com Harassment Law The Affirmative Defense is especially Powerful in Harassment cases Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998): employers have an affirmative defense to protect them from liability for claims of hostile environment harassment committed by their supervisory employees or others. page 4 @Victoria L. Herring, www.herringlaw.com created 2005
  5. 5. @Victoria L.H erring,www.H erringLaw.com Ellerth & Faragher This defense requires the employer to prove two necessary elements: The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. page 5 @Victoria L. Herring, www.herringlaw.com created 2005
  6. 6. @Victoria L.H erring,www.H erringLaw.com Iowa Court’s View “Under the test adopted by our court in Lynch, an employer is liable for hostile environment harassment only if it knew or should have known of the alleged harassment and failed to take prompt remedial action.” Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990) citing Lynch v. City of Des Moines, 454 N.W.2d 827 (Iowa 1990) page 6 @Victoria L. Herring, www.herringlaw.com created 2005
  7. 7. @Victoria L.H erring,www.H erringLaw.com The Burden is the Employer’s In both federal and Iowa court systems, a burden is placed on the employer to demonstrate its good faith efforts to prevent and remedy harassment and doing so effectively will inoculate the employer against claims of harassment in the work environment. page 7 @Victoria L. Herring, www.herringlaw.com created 2005
  8. 8. @Victoria L.H erring,www.H erringLaw.com Helpful Resources EEOC Enforcement Guidance: “Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors”, EEOC Enforcement Guidance (June 1999), EEOC’s regulations on discrimination because of sex. 29 C.F.R. § 1604.11 (“sexual harassment”). page 8 @Victoria L. Herring, www.herringlaw.com created 2005
  9. 9. @Victoria L.H erring,www.H erringLaw.com EEOC has also issued a “Policy Guidance on Current Issues of Sexual Harassment” (N.o. N-915-050, issued 3/19/90), also available at the EEOC website. page 9 @Victoria L. Herring, www.herringlaw.com created 2005
  10. 10. @Victoria L.H erring,www.H erringLaw.com Although EEOC documents and many cases mainly deal with sexual harassment in the workplace, there is a long history of racial harassment as well and other types of harassment because of a protected class (e.g., national origin, religion, disability) have been proven. The concepts are the same: behavior which severely or pervasively affects a person’s employment terms and conditions based on an illegal motive. page 10 @Victoria L. Herring, www.herringlaw.com created 2005
  11. 11. @Victoria L.H erring,www.H erringLaw.com Handling Complaints H. R. Department or responsible person Policy or Procedures Manual or materials including statement on Harassment not limited to sex/gender or race page 11 @Victoria L. Herring, www.herringlaw.com created 2005
  12. 12. @Victoria L.H erring,www.H erringLaw.com Complaint Process Alternative avenues of reporting: safety valve no requirement of formal, written complaint Statement on Retaliation Take complaints seriously and handle promptly page 12 @Victoria L. Herring, www.herringlaw.com created 2005
  13. 13. @Victoria L.H erring,www.H erringLaw.com During the Investigation Reassignment of Complainant and Alleged Harasser Paid time off or administrative leave during investigation Equal handling of both parties as much as possible - avoid appearance of penalizing the person who raised the issue page 13 @Victoria L. Herring, www.herringlaw.com created 2005
  14. 14. @Victoria L.H erring,www.H erringLaw.com The Investigation Have a process in place how to find a skilled investigator how to handle the parties what will the process be who are those with a ‘need to know’ confidentiality concerns page 14 @Victoria L. Herring, www.herringlaw.com created 2005
  15. 15. @Victoria L.H erring,www.H erringLaw.com Meritor Savings Bank v. Vinson U. S. Supreme Court requires “prompt” and effective actions to be taken to address harassment complaints rule of law reflected in the ‘rule of the jury’, its expectations of employer’s reaction popular culture has educated juries as much as the law has page 15 @Victoria L. Herring, www.herringlaw.com created 2005
  16. 16. @Victoria L.H erring,www.H erringLaw.com Having Policies Important to have in place Important to follow, fairly and evenly: employees will see or look for unfairness Dissemination of policies and training about those policies Evaluations based on following policies page 16 @Victoria L. Herring, www.herringlaw.com created 2005
  17. 17. @Victoria L.H erring,www.H erringLaw.com Obvious commitment of Employer to its policies Easier to prevent complaints (of harassment or other impropriety) by having effective and adhered to policies Train regularly, up and down ‘chain of command’ on policies Effective policy can prevent the problem from occurring, prevent filing of complaints or provide the affirmative defense. page 17 @Victoria L. Herring, www.herringlaw.com created 2005
  18. 18. @Victoria L.H erring,www.H erringLaw.com BOTH LARGE AND SMALL BUSINESSES Distinction between handling by large corporation with many resources hotlines established investigatory teams paid leave for all concerned page 18 @Victoria L. Herring, www.herringlaw.com created 2005
  19. 19. @Victoria L.H erring,www.H erringLaw.com and smaller business with fewer resources clear policy ‘open door policy’ regular meetings, camaderie hired investigator: lawyer, HR professional page 19 @Victoria L. Herring, www.herringlaw.com created 2005
  20. 20. @Victoria L.H erring,www.H erringLaw.com What is the Process which should be followed? What objectives? what are the relevant company policies what are the relevant laws or regulations who should investigate who should be involved in the investiga- tion and itnerviews? PLANNING THE INVESTIGATION page 20 @Victoria L. Herring, www.herringlaw.com created 2005
  21. 21. @Victoria L.H erring,www.H erringLaw.com The Plan for the Investigation Employer should have clear plan or process to follow in handling investigation Might be part of its policy and disseminated or an internal policy or ad hoc page 21 @Victoria L. Herring, www.herringlaw.com created 2005
  22. 22. @Victoria L.H erring,www.H erringLaw.com Who should investigate lawyer or professional demonstrates employer’s commitment to its policy sensitive to obtaining and handling private and troubling information Old Capitol pillars Washington D.C. page 22 @Victoria L. Herring, www.herringlaw.com created 2005
  23. 23. @Victoria L.H erring,www.H erringLaw.com Who should Investigate the Complaint: external investigator versus internal manager or employee? someone with confidence of employer someone with or capable of developing confidence of complainant, alleged harasser, other employees someone provided ample resources page 23 @Victoria L. Herring, www.herringlaw.com created 2005
  24. 24. @Victoria L.H erring,www.H erringLaw.com Who should be interviewed, and in what order What questions should be asked Should the interviews be taped?? Are there any documents, tapes, or other materials to get? How prompt can the investigation be and still be meaningful? page 24 @Victoria L. Herring, www.herringlaw.com created 2005
  25. 25. @Victoria L.H erring,www.H erringLaw.com How should the Investigator investigate: notations or recording standard questions or checklists supplemented by inquisitiveness and common sense who, what, when, where, why, how = open ended, solicit informative answers sensitivity to nature of information page 25 @Victoria L. Herring, www.herringlaw.com created 2005
  26. 26. @Victoria L.H erring,www.H erringLaw.com Caution: either the complainant or the alleged harasser may be protected by other laws, e.g., collective bargaining agreement or regulations, and adjustments may be needed in how the interviews and investigation will be conducted page 26 @Victoria L. Herring, www.herringlaw.com created 2005
  27. 27. @Victoria L.H erring,www.H erringLaw.com Need reasonable and prompt handling of complaints and remedial measures what amount of time between notice of the complaint and commencement of investigation? Sims. v Health Midwest Physician Services Corp., 196 F.3d 915 (8th Cir. 1999)[prompt response is first requirement of affirmative defense]. Factors Supporting the Affirmative Defense page 27 @Victoria L. Herring, www.herringlaw.com created 2005
  28. 28. @Victoria L.H erring,www.H erringLaw.com How long did the investigation take, and why? Investigation should be thorough: interviews of complainant, alleged harasser, anyone who may know about the behavior, gathering of documents, emails etc. possibly re-interview parties after entire factual context established, tie up loose ends page 28 @Victoria L. Herring, www.herringlaw.com created 2005
  29. 29. @Victoria L.H erring,www.H erringLaw.com What else could the Employer have done? to prevent the harassment from occurring in handling the complaint in remedying the harassment page 29 @Victoria L. Herring, www.herringlaw.com created 2005
  30. 30. @Victoria L.H erring,www.H erringLaw.com Will the Remedial Action be sufficient? If “not harassment”, should something still be done? If harassment is found, what actions should be taken? Should a formal written report be made? Results of Investigation page 30 @Victoria L. Herring, www.herringlaw.com created 2005
  31. 31. @Victoria L.H erring,www.H erringLaw.com Employer actions after investigation should affirm to the employees: making a complaint is acceptable and, even, desireable allegations of harassment are taken seriously, even if not rising to level of illegal activity employer will be proactive when possible page 31 @Victoria L. Herring, www.herringlaw.com created 2005
  32. 32. @Victoria L.H erring,www.H erringLaw.com What is appropriate employer action? What does policy provide? What will send a message? What might prevent re-occurrence or occurence of harassing events? page 32 @Victoria L. Herring, www.herringlaw.com created 2005
  33. 33. @Victoria L.H erring,www.H erringLaw.com Employee training or retraining Evaluations and personnel file notations written warnings or other forms of discipline transfers, demotions, terminations What steps should the Employer Take? page 33 @Victoria L. Herring, www.herringlaw.com created 2005
  34. 34. @Victoria L.H erring,www.H erringLaw.com The Goal: Prevention Remedial Action page 34 @Victoria L. Herring, www.herringlaw.com created 2005
  35. 35. @Victoria L.H erring,www.H erringLaw.com The Goal Attained through planning and prevention T h a n k y o u V i c t o r i a L . H e r r i n gpage 35 @Victoria L. Herring, www.herringlaw.com created 2005
  36. 36. @Victoria L.H erring,www.H erringLaw.com page 36 @Victoria L. Herring, www.herringlaw.com created 2005

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